Trump, special counsel at odds in Florida over future of documents case

Fort Pierce, Florida — Days after the Supreme Court agreed to consider whether he is absolutely immune from prosecution, former President Donald Trump and his legal team were in a Florida courtroom, as the judge in the federal classified documents case against him on Friday weighed when the case will go to trial.

U.S. District Judge Aileen Cannon, a Trump appointee, has not set a trial date. She appeared skeptical of the July date proposed by special counsel Jack Smith. The hearing, which has already been in session for two hours, focused mainly on how the case can proceed to trial and what pretrial hearings and procedures will be required.

Trump and Smith were both in the federal courtroom during the marathon morning session. It was the first time they've been in the same room since January, when Trump's lawyers were making the case in an appeals court hearing in Washington that he has broad immunity from prosecution for alleged acts while he was president.

Trump entered the court wearing a blue suit and red tie and spoke from time to time with his attorneys, who flanked him throughout the proceeding. He sat mostly looking toward the judge, at times glancing at prosecutors.

Prosecutors Thursday night proposed a July 8 trial date, while the defense, which has argued a fair trial would not be possible before the November election, conceded that August or September would be feasible if the court requires the trial to move forward. Both sides continued to make the case for their preferred dates.

"The one thing the parties can agree on is this case can be tried this summer," Deputy special counsel Jay Bratt argued Friday. But Cannon referred to some of the proposed pretrial deadlines proposed by the Justice Department as "unrealistic" and said she needs space in the case to "allow for flexibility."

Judge Cannon continued to try to grapple with the complex evidence and rules of classified evidence in the case and their impact on the trial date. She appeared reluctant to schedule the case in July.

Trump attorney Todd Blanche pointed out that the former president, beginning in March, would be on trial in another case in New York until mid-May, so his lawyers "cannot effectively prepare for this trial by July." Prosecutors pointed out that Blanche chose to take the documents case when he already had the New York case. Blanche countered that a defendant should have the counsel of his choosing and said, "We are not trying to play courts off each other."

Blanche said the "easy solution" would be to start after the 2024 election, in late November, to avoid "working ourselves into almost a frenzy."

The parties said they thought the case would take four or five weeks and discussed the Justice Department guidelines that preclude "overt" investigative actions in the run-up to a presidential election. Trump's team argued it was a form of "election interference" to have the case go to trial in the fall, but prosecutors rejected that assertion, telling the court the election-related guidance applies to indictments and charges and not to actual trials, which are under the jurisdiction of courts.

Cannon also considered the various procedures required to use and examine classified evidence under the Classified Information Protection Act (CIPA) and how that might affect trial schedules, noting at one point that one case cited by the Justice Department involving classified documents took three and a half years to complete.

The other portion of the morning session Friday focused on Trump's motion to compel discovery from the Justice Department on evidence that proves — according to Trump's lawyers — that the case was politically motivated.

Prosecutor David Harbach characterized their arguments as "baseless theories about the origins of this protection" in an attempt to get a hearing on the books and force evidentiary handover.

They said that holding a hearing on that evidence would be "unprecedented" and criticized Trump's team for not citing any previous cases where such a hearing had occurred.

But Trump argues he's entitled to discovery beyond what the special counsel is required to provide. His legal team says the special counsel is not acknowledging "exculpatory, discoverable evidence in the hands of the senior officials at the White House, DOJ, and FBI who provided guidance and assistance as this lawless mission proceeded, and the agencies that supported the flawed investigation from its inception such as NARA, the Office of the Director of National Intelligence ("ODNI"), and other politically-charged components of the Intelligence Community."

Trump attorney Emil Bove argued the former president's lawyers can't "take [the prosecutor's] word for it" when it says the evidentiary obligations don't apply to a larger team. He also argued that they should be able to discuss why President Biden was not charged for what they said was similar conduct, a claim the Justice Department has refuted in court documents.

As he left the court for the lunchtime break, he briefly looked at the press behind him.

The parties discussed whether the defendants would be able to include in publicly filed motions sensitive information that is normally the subject of a protective order – like witness names, witness statements and grand jury information.

Cannon previously allowed the inclusion, but Smith has argued in court filings that she should reverse course.

Judge Cannon seemed defensive about her past order allowing the information but was open to hearing the parties. Prosecutors said including the sensitive material would not only pose a danger to witnesses but could also affect the integrity of the trial.

The prosecution said it plans to call 40 witnesses at trial and argued that a majority of the witnesses could be affected by any release of information.

"There has been so much witness intimidation...connected to any case in which Mr. Trump is a defendant," Harbach alleged in court. "It is a real concern."

Cannon said witness protection is "paramount," but she had to weigh that against the "openness of criminal proceedings" guaranteed by the Constitution. She said she was open to reasonable measures to protect safety. The special counsel also rejected Cannon's suggestion that the materials could be included but with redacted names.

Then, at one point later in the hearing, Cannon asked Harbach when the prosecutors would be releasing a witness list. Special counsel Jack Smith appeared to be visibly shocked.

"This is not about Donald Trump vindicating the First Amendment," Harbach said. "We have to call out what it is," he added, urging the judge to prevent witness names from public release.

"I think your position, to some extent, is unprecedented," Cannon responded.

Cannon also had some sharp responses for Trump's lawyers, too, and stopped defense attorney Emil Bove from bringing the campaign into the courtroom. Bove tried to allege the government efforts were "frivolous" because Trump "should be preparing for Super Tuesday."

"That's fine. Can we talk about the actual legal issues," the judge shot back. "Is your argument just related to time spent elsewhere?"

Trump lawyers argued the former president is entitled to a public trial, which they said includes the public filing of motions.

Nauta's attorney, Stanley Woodward, accused the Justice Department of "shielding" its investigation in D.C. by keeping much of the grand jury material from the initial investigation sealed. Prosecutors said they are working on ensuring some of the material can be released by the chief judge in that jurisdiction. A grand jury in Washington, D.C., investigated the documents case initially, and later, the special counsel began calling witnesses in Florida and ultimately indicted Trump in Florida, where classified documents were found at the former president's Mar-a-Lago residence.

A press coalition including CBS News also urged the court to allow for the maximum amount of public disclosures.

"There is so much secrecy that it is hard to understand what is happening and for the public to trust the process," the press attorney said.

Cannon said she would take the arguments under advisement and issue a ruling, but she did not say when. She appeared at times to be overwhelmed by the number of issues in the case, stating that she had some 20 motions to consider, and she said the case involves many complex issues. More than once she said there was a lot to do.

As the hearing ended, Smith and Trump appeared to glance in one another's direction. It has been a tumultuous week for Smith, with his D.C. election interference case against Trump on hold while the U.S. Supreme Court weighs the question of presidential immunity, and the timeline of this classified documents case remains uncertain.

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