Judge Sets Trump's Classified Docs Trial Date--Now What?

A jury trial is scheduled to begin in May 2024 in southern Florida. Judge Aileen Cannon appears poised to keep Special Counsel Jack Smith's team in line on what she designated a "complex" case.

Amid concerns about voluminous discovery and restrictions related to the viewing of alleged classified material, Judge Aileen Cannon set a May 20, 2024 trial date in Special Counsel Jack Smith’s case against former president Donald Trump for unlawfully storing government records at his Mar-a-Lago residence.

Smith, appointed by Attorney General Merrick Garland in November 2022, indicted Trump last month on 31 counts of “willful retention of national defense information.” Trump and his aide, Waltine Nauta, also face conspiracy, obstruction, and perjury charges related to the movement of dozens of boxes shipped to Mar-a-Lago from the White House after Trump left office.

Both men have pleaded not guilty.

Cannon originally ordered an August trial date, but Smith’s office filed a motion to continue the trial until December 11, citing the need for Trump’s lawyers to obtain security clearances and the burdensome requirements under the Classified Information Procedures Act (CIPA) that “often lengthen the ordinary trajectory from indictment to trial,” Jay Bratt, DOJs counterintelligence chief assigned to Smith’s team, wrote in the June 23 motion.

Defense counsel filed a separate motion seeking an indefinite delay based on numerous factors including Trump’s run for president, pending lawsuits, and the political nature of the indictment. “This extraordinary case presents a serious challenge to both the fact and perception of our American democracy,” attorneys Christopher Wise and Todd Blanche (representing Trump) and Stanley Woodward (representing Nauta) wrote on July 10. “The Court now presides over a prosecution advanced by the administration of a sitting President against his chief political rival, himself a leading candidate for the Presidency of the United States.”

Trump’s team also pointed to the challenge of seating an impartial jury during campaign season. “Proceeding to trial during the pendency of a Presidential election cycle wherein opposing candidates are effectively (if not literally) directly adverse to one another in this action will create extraordinary challenges in the jury selection process and limit the Defendants’ ability to secure a fair and impartial adjudication.”

Cannon Won’t Tolerate DOJs Bad Behavior

The day before the July 18 hearing, Smith filed a motion seeking an extensive protective order under CIPA guidance; the special counsel’s office indicated the government would attempt to prevent Trump from viewing some of the alleged classified documents. “The defense shall not disclose classified information to the Defendants—other than materials marked ‘Provided to Donald J. Trump’—absent written permission of the government.”

Cannon denied Smith’s proposed protective order and scolded the government for presenting an “unripe” motion. Bratt insisted he attempted to confer with defense prior to filing the motion; Cannon was having no part of it. “So you tried to confer on a Friday before filing on a Monday something that is presumably quite important. That seems a bit rushed,” Cannon told Bratt on Tuesday afternoon in her Fort Pierce, Florida courtroom.

She also forced Bratt to backtrack on his claims the government didn’t plan on keeping certain documents away from the former president.

Cannon: Now, when I was reading the Section 3 protective order as proposed by the Government -- is it the Government's intention to withhold certain portions of classified discovery from the defendants themselves?

Bratt: Not at this point, Your Honor

Cannon: I thought there was a provision in the proposed Section 3 protective order that did contemplate potentially withholding certain documents from Defendants themselves as distinct from Defense Counsel.

Bratt: Yes, sorry, Your Honor. Yes, yes, I'm sorry, I misunderstood.

When defense attorneys argued the amount of unclassified discovery already produced by Smith’s team—more than 1 million documents and nine months of video captured by Mar-a-Lago security cameras to start—required extensive time to review, Bratt countered that the defense only needed to watch roughly 10 days of security footage identified by Smith’s team as relevant. Cannon quickly interrupted: “[The] Defense would have to review all of the footage to be properly informed about the scope of the footage. I mean, it's not the case that they're going to zoom in on whatever period of time the Government isolates as critical.”

It’s not the first time Cannon, appointed to the bench by Trump in 2020, has clashed with Bratt. Cannon presided over Trump’s lawsuit last year seeking the appointment of a special master to handle the 13,000 pieces of evidence taken during the FBIs nine-hour raid of Mar-a-Lago in August 2022—which resulted in the seizure of 102 files with alleged “classified markings” as well as personal items, banking records, and medical files.

Admonishing Bratt and the DOJ in general for leaks to the news media and the mishandling of privileged material in the early stages of the investigation, Cannon appointed a special master in September. “[The] investigation and treatment of a former president is of unique interest to the general public, and the country is served best by an orderly process that promotes the interest and perception of fairness,” Cannon wrote in her September 5 order. “The Court is mindful that restraints on criminal prosecutions are disfavored but finds that these unprecedented circumstances call for a brief pause to allow for neutral, third-party review to ensure a just process with adequate safeguards.”

Cannon then denied the DOJs motion to put her order on hold pending appeal and threw some shade at DOJ in the process. “[The] Court agrees with the Government that ‘the public is best served by evenhanded adherence to established principles of civil and criminal procedure,’ regardless of the personal identity of the parties involved. It is also true, of course, that evenhanded procedure does not demand unquestioning trust in the determinations of the Department of Justice.” (Emphasis added.)

Her order eventually was overturned on appeal. But Cannon does not appear bowed by either the circuit court’s reversal or intense media coverage doubting her ability to be fair-minded as an appointee of the defendant in this case.

A Tight Schedule to Keep—With Lots of Room for Delays

On Friday, Cannon issued a seven-page order in anticipation of a May 20 trial. While the judge denied Trump’s overall argument for an indefinite delay, she also rejected Smith’s proposed December 2023 trial date:

“[The] Government’s proposed schedule is atypically accelerated and inconsistent with ensuring a fair trial. As it stands, the Government’s timeline spans less than six months from the first discovery production (June 21, 2023) to trial in a CIPA case involving, at the very least, more than 1.1 million pages of non-classified discovery produced thus far (some unknown quantity of which is described by the Government as “non-content”), at least nine months of camera footage (with disputes about pertinent footage), at least 1,545 pages of classified discovery ready to be produced (with more to follow), plus additional content from electronic devices and other sources yet to be turned over. the amount of discovery in this case is voluminous and likely to increase in the normal course as trial approaches.”

Cannon established dates for both the government and defense to meet related to discovery, CIPA requirements, and customary pretrial motions. Politico’s Josh Gerstein wrote a detailed analysis of the schedule here.)

Cannon also designated the case as “complex,” a categorization that Smith’s team argued against. (Bratt’s co-counsel, David Harbach, one-time special counsel to disgraced former FBI Director James Comey, told Cannon that Trump should be treated as a “private citizen.”)

Of course, Donald Trump is not a “private citizen,” he is the former president of the United States. Trump’s lawyers indicated during Tuesday’s hearings that part of their defense—perhaps even the basis of a motion to dismiss—will address Trump’s authority to retain government papers under the Presidential Records Act. “We are going to maintain the position that the Presidential Records Act governs because that is what governs how the president manages and disposes of information in his possession during his term of office,” Kise told Cannon.

Smith’s team now claims the PRA, the alleged violation of which initiated the investigation early last year, has nothing to do with the indictment at hand.

(A little background: The National Archives and Records Administration (NARA) notified Trump in May 2021 that some government records were missing. Trump’s aides turned over 15 boxes of what they believed met the requirements of the PRA to NARA. The archives then claimed classified materials was found inside the boxes and sent a criminal referral to DOJ. The FBI opened an investigation in March 2022; agents allegedly identified 197 papers with “classified markings.” A subpoena was served on Trump in May 2022, which resulted in the production of 38 more records with “classified markings.” Not satisfied with Team Trump’s obvious cooperation in the matter, the Washington FBI field office sought a search warrant to seize “national defense information” from Trump’s residence. After the FBI raid, the government claimed to have found 102 more documents with “classified documents,” including 27 files in Trump’s office.)

Trump’s counsel also seems prepared to seek a dismissal based on the unusual circumstances of the investigation. Nearly the entire inquiry was conducted in the federal courthouse in Washington, D.C., a haven of Trump-hating judges and prosecutors. The grand jury, similar to a trial jury, was comprised of voters living in a city that voted 93 percent for Joe Biden.

D.C. Chief Judge Beryl Howell, a former Senate Democrat staffer appointed by Barack Obama in 2010 and vocal critic of Trump and his supporters, handled all the behind-the-scenes proceedings including the highly unusual step of piercing attorney-client privilege with Trump’s lawyer, Evan Corcoran, under the “crime fraud exception.” (Her full order remains under seal.) That decision allowed Smith’s team to compel Corcoran’s grand jury testimony and private communications with his client, Donald Trump. The New York Times reported that the evidence collected from Corcoran was “crucial to the shape and outcome of the investigation.”

At the last minute, Smith changed venues from D.C. to southern Florida, the proper jurisdiction since the alleged crimes happened in Palm Beach. The Times also reported that moving the investigation to Florida required little more than prosecutors “read[ing] the early grand jury transcripts to the new grand jurors or have federal agents offer them a summary of the most important points.”

Trump’s lawyers called foul. “There's a U.S. Attorney manual provision that states very clearly that a case should not be presented to a grand jury in the district unless venue for the offense lies in that district. There's no scenario under which most of the statutes charged against President Trump that would have ever lied in the District of Columbia,” Kise told Cannon.

Nauta’s attorney also suggested the government broke established rules related to venue. “I have serious questions about how an investigation that had been pending for months and months and months in the District of Columbia ended up here, in the Southern District,” Woodward said. “I'm especially curious, as we see discovery, to know what was done in D.C. and then what was done in Miami and whether there's a motion for abuse of grand jury process in this case.”

And therein lies just one potential problem in keeping Cannon’s schedule. It’s hard to see how an unprecedented case involving a former president and current candidate exacerbated by unclear governing statutes, possible misconduct by government officials, election implications, privilege issues, jury bias, and massive amounts of both unclassified and classified discovery can be ready to go to trial in less than 10 months.

Overshadowing all of this, of course, is DOJs crashing credibility among the public as well as Smith’s recent letter informing Trump that he is a target of the special counsel’s January 6 investigation as well.

How that looming indictment will impact Cannon’s schedule, or her already low tolerance for more shenanigans by this DOJ, remains to be seen. One thing, however, appears to be certain: the fireworks in this case are only just beginning.