Donald Trump’s trial on charges that he retained classified documents at his Mar-a-Lago club and obstructed justice is running about four months behind schedule after the federal judge presiding in the case in Florida declined to set a crucial filing deadline until at least next March.
The US district judge Aileen Cannon put off setting a deadline for Trump to submit a notice about what classified information he intends to use at trial – currently set for May – until after a hearing next year that almost certainly precludes the pre-trial process from finishing in time.
Trump was indicted this summer with violating the Espionage Act when he illegally retained classified documents after he left office and conspiring to obstruct the government’s efforts to retrieve them from his Mar-a-Lago club, including defying a grand jury subpoena.
But the fact that Trump was charged with retaining national defense information means his case will be tried under the complex rules laid out in the Classified Information Procedures Act, or Cipa, which governs how those documents can be used in court.
At issue is the sequential nature of the seven-stage Cipa process, meaning each previous section has to be completed before the case can proceed to the next section. A delay halfway through the process invariably has the net effect of delaying the entire schedule leading to trial.
The judge last week indicated she was inclined to delay the start of the trial at any rate, expressing concern that Trump’s criminal cases in New York and Washington could “collide” with the documents case in Florida because they are all scheduled to commence between March and May.
But even on a purely logistical basis, the May trial date is almost certain to be pushed back after Cannon last week issued a delayed pre-trial schedule and then effectively cemented those delays on Thursday with her latest order.
The revised timetable itself delayed a series of crucial Cipa dates. Most notably, Cannon will not hold the Cipa section 4 hearing – to decide whether the special counsel Jack Smith can redact certain information from the classified documents turned over to Trump – until February, instead of the original October date.
On Thursday, the judge made her most consequential decision yet when she rejected a request from the special counsel that she set a deadline for Trump to submit his Cipa section 5 notice, writing that she would only address that at a subsequent 1 March hearing to decide future scheduling matters.
The ruling was significant because, based on an analysis of Cannon’s initial and revised scheduling orders, Trump’s deadline to file the section 5 notice concerning what classified information he intends to use in his defense at trial may not come until potentially next April.
In her original scheduling order that projected the current May trial date, the judge allowed Trump to take 32 days between the end of the section 4 hearing and having to file his section 5 notice.
Should Cannon allow Trump to have the same 32 days from the end of the 1 March hearing to submit his section 5 notice, that would suggest a new deadline of roughly the end of March or the start of April – an overall delay of roughly four months.
The order in that sense amounted to a victory for Trump, who has made it no secret that his overarching legal strategy is to seek to delay the trial, ideally beyond the 2024 election in November, in the hopes that winning could enable him to potentially pardon himself or direct his attorney general to drop the charges.
That new timetable almost certainly leaves insufficient time to complete the Cipa process, according to Espionage Act experts, because the final sections, dealing with the admissibility of redacted classified documents into evidence at trial, are typically the most onerous.
Section 5 itself can be lengthy because the defense often files a notice that the government finds too vague, and the Trump legal team would likely be no exception. The special counsel would have to challenge the vagueness of Trump’s notice, which would add weeks of litigation.
In section 6(a), the judge holds a hearing to decide the relevance and admissibility of the classified information Trump wants to disclose at trial. But a final ruling might not come for weeks afterwards, not least because Cannon may choose to look through all of the classified documents herself to reach a decision.
If Cannon decides at her discretion that Trump can use all the classified information he wants at trial, section 6(c) says the special counsel can propose to Cannon that Trump instead use unclassified “substitutes” or, more commonly, redacted versions of the documents.
But Trump could challenge any redactions on the basis that a jury could draw a prejudicial inference from them. If Cannon sides with Trump, the special counsel can appeal under section 7 to the 11th circuit. If the appeals court also rules against the government, the attorney general must decide whether to drop elements of the case.
