The federal judge presiding over Donald Trump’s classified documents case signaled that she could delay the trial until 2024, appearing inclined to find that the matter was sufficiently complex after hearing arguments from prosecutors and the former president’s lawyers on Tuesday.
The US district court judge Aileen Cannon did not rule from the bench on a timetable during the roughly two-hour pre-trial conference at the courthouse in Fort Pierce, Florida, and concluded the hearing by saying she would enter a written order at a later date.
Prosecutors in the office of special counsel Jack Smith, who is overseeing the documents case and the investigation into Trump’s efforts to obstruct the transfer of power, had asked Cannon last week to reject Trump’s suggestion to postpone the trial until after the 2024 election.
The dueling requests from Trump and the justice department present an early test for Cannon, a Trump appointee who is under heightened scrutiny for issuing favorable rulings to the former president during the criminal investigation, before they were overturned on appeal.
Cannon appeared skeptical of arguments from both sides at the hearing, telling prosecutors she was unaware of any trial involving classified information that went to trial in six months and telling Trump’s lawyers that the 2024 election would not factor into her scheduling decisions.
The judge said at issue was whether the documents case was sufficiently “complex” – because of novel legal issues and the volume of discovery materials that prosecutors will turn over to the defence – to warrant a timetable that would delay pre-trial proceedings beyond December.
In response to pointed questions from Cannon, prosecutors seemed to acknowledge that their timetable for a December trial date was aggressive, although Cannon also separately told Trump’s lawyers she could not indefinitely postpone setting a trial date as they had requested.
Trump was charged last month with retaining national defense information, including US nuclear secrets and plans for US retaliation in the event of an attack, which means his case will be tried under the rules laid out in the Classified Information Procedures Act, or Cipa.
The statute was passed in the 1980s to protect the government against the “graymail” problem in national security cases, a tactic in which the defense threatens to reveal classified information at trial, betting that the government would prefer to drop the charges rather than risk disclosure.
While Cipa established a mechanism through which the government can safely charge cases involving classified documents, the series of steps that has to be followed means it takes longer to get to trial compared with regular criminal cases without national security implications.
Trump and his valet, Walt Nauta, have pleaded not guilty. The pair are currently co-defendants, though Nauta’s lawyer Stanley Woodward said – in arguing for an indefinite postponement – he might move to “sever” and seek a standalone trial for his client after reviewing the discovery.
The reality of conducting pre-trial proceedings under Cipa is that Cannon’s trial date still has the potential to be pushed back. In the prosecution of former NSA analyst Reality Winner, the trial date was delayed multiple times during the discovery phase.
The consequences of an extended delay could be far-reaching. If the case is not adjudicated until after the 2024 election and Trump is re-elected, he could try to pardon himself or direct the attorney general to have the justice department drop the case.
Ahead of the pre-trial conference, Trump’s lawyers Todd Blanche and Chris Kise argued in court filings that Cannon should not bother setting a tentative trial date until the major pre-trial motions were finished because they could not know how long classified discovery might take.
The Trump legal team also claimed that going to trial before the 2024 presidential election – prosecutors have outlined a schedule for a trial date in December – would be unrealistic because of supposed challenges in selecting an impartial jury.
In their reply last week, prosecutors took aim at Trump’s arguments for an indefinite delay, rejecting the claims that the charges touched on novel legal issues or that the discovery process was uniquely complex.
“The defendants are, of course, free to make whatever arguments they like for dismissal,” the prosecutors wrote. “But they should not be permitted to gesture at a baseless legal argument, call it ‘novel,’ and then claim the court will require an indefinite continuance.”
The filing took particular issue with the Trump’s lawyers’ suggestion that any trial should be delayed until after the 2024 election because of the supposed difficulty in selecting an impartial jury.
“To be sure, the government readily acknowledges that jury selection here may merit additional protocols (such as a questionnaire) that may be more time-consuming than in other cases, but those are reasons to start the process sooner rather than later,” prosecutors wrote.
