Case may run past November’s election
WASHINGTON>> The case against Donald Trump seemed relatively straightforward in August 2022 when FBI agents searched his Mar-a-lago estate, with authorities citing evidence that the former president hoarded enough classified documents to fill dozens of boxes and obstructed the government’s efforts to retrieve them.
But nine months after he was indicted, there are mounting doubts that the case can reach trial this year.
The Trump-appointed judge in the case has yet to set a firm trial date despite holding two hourslong hearings with lawyers this month. Multiple motions to dismiss the case are still pending, disputes over classified evidence have spanned months, and a bitterly contested defense request to disclose the names of government witnesses remains unresolved. Complicating matters further is a recent order suggesting that the judge, Aileen Cannon, is still entertaining a Trump team claim about his rightful possession of the documents that she had appeared openly skeptical of days earlier.
“This does seem to be moving more slowly and less sequentially than other cases that I have seen” concerning classified information, said David Aaron, a former Justice Department national security prosecutor.
To a certain extent, the delays are the product of a broader Trump team strategy to postpone the four criminal cases confronting the presumptive Republican nominee in this year’s presidential race. But the case in Florida is unique because of the startlingly few substantive decisions that have been made to move closer to a trial. That raises the prospect that a resolution in the case may be unlikely before this year’s presidential election. If he were to win the White House, Trump could appoint an attorney general who would dismiss the federal charges against him in Florida and other jurisdictions.
Prosecutors on special counsel Jack Smith’s team have fought strenuously to press the case forward. Although they’ve taken care not to mention the upcoming election, they repeatedly have cited a public interest in getting the case resolved quickly and have pointed to what they say is overwhelming evidence — including surveillance video, a defense lawyer’s notes and testimony from close associates — establishing Trump’s guilt beyond a reasonable doubt.
“This case should be over already,” said Jeffrey Swartz, a professor at Cooley Law School and former judge in Florida. “There was nothing in this case that complex.”
That’s what distinguishes the classified documents case from the other — more legally intricate — criminal cases against Trump, which revolve around issues from allegations of hush money paid to a porn actress to complex racketeering charges and his role in seeking to overturn the 2020 election.
But defense lawyers see it differently, and Cannon — a former federal prosecutor who was appointed to the bench in 2020 and has limited trial experience as a judge — has proved receptive to some of their arguments since even before the case was filed in June.
The judge first made headlines weeks after the FBI search of Mar-a-lago when, responding to a Trump lawsuit seeking to recover the seized documents from the federal government, she appointed an independent arbiter to sift through all the records. That appointment was overturned by a unanimous federal appeals panel, which said Cannon had overstepped her bounds.
“My sense of it is, when she did get reversed by the 11th Circuit that made her gun-shy, so she’s gone at a very slow pace” and issued “very few public, written decisions about important issues,” said John Fishwick Jr., a former U.S. attorney for the Western District of Virginia.
Soon after Trump was charged, Cannon set the case for trial on May 20, 2024. But last fall she signaled she would reconsider that date during a March 1 hearing. The hearing took place as scheduled — but no replacement date was picked, even though both sides operating on the assumption that the May 20 date is moot have suggested the trial could begin this summer.
That’s not the only unresolved question. Defense lawyers have filed about a half-dozen motions to dismiss the case, including on grounds that the prosecution is vindictive and that Smith’s appointment as special counsel was illegal.
Cannon this month heard hours of arguments on two of the dismissal motions — whether Trump was entitled under a statute known as the Presidential Records Act to retain the classified documents after he left office and whether the Espionage Act law at the heart of the case was so vague as to be unconstitutional.
Cannon appeared skeptical of the defense assertions and, after the hearing, issued a terse twopage order rejecting the vagueness argument while permitting Trump to raise it again later.
She has not yet acted on the Presidential Records Act motion, but legal experts noted her direction last week to lawyers for both sides to weigh in on proposed jury instructions that appeared to tilt in Trump’s favor. She asked them to respond to a premise that said in part: “A president has sole authority under the PRA to categorize records as personal or presidential during his/her presidency. Neither a court nor a jury is permitted to make or review such a categorization decision.”
That wording was notable because it echoes arguments Trump’s lawyers have been making for months. They insist that law allowed him to designate the records he was charged with retaining as his own personal files. Smith’s team, by contrast, says the law has no relevance in a case concerning illegal possession of top-secret information, including nuclear secrets.
“It seems a little early in the game to be talking about jury instructions when there are substantial questions of law that have been raised that need to be resolved,” said Aaron, although he said the jury instructions order could be a way to tee up those resolved questions.