Federal Judge Aileen M. Cannon could set a trial date in United States v. Trump, the Department of Justice’s formidable Espionage Act and obstruction prosecution of former President Donald Trump for mishandling classified documents, as early as Tuesday at a pretrial hearing in Florida.
But don’t be surprised if gamesmanship by Trump’s attorneys causes her to delay the classified documents trial until after the November 2024 election. At the heart of such a move would be Manhattan District Attorney Alvin Bragg’s questionable criminal prosecution of Trump for allegedly concealing hush money payments to porn actress Stormy Daniels,
The Justice Department proposed a Dec. 11, 2023 trial to Judge Cannon for the classified documents case, citing the Speedy Trial Act obligating federal judges to “assure a speedy trial.” Trump’s attorneys responded with a request for an “indefinite” trial postponement, arguing that more time was needed for pretrial motions, discovery and resolution of issues under the Classified Information Procedures Act, which governs admission into evidence of classified documents.
These are standard, off-the-shelf arguments in a case like this one. However, Trump’s attorneys have also contended that the Justice Department’s schedule would interfere with President Trump’s campaign for president where, as “the likely Republican nominee,” he will be consumed with campaigning “until the election on November 5, 2024.” Left unsaid is that, if the trial is adjourned until after the election and Trump is the victor, he will almost certainly order his new Justice Department to dismiss the classified documents case.
If Judge Cannon grants the motion for an indefinite delay, she will confer an exemption from speedy trial rules on Trump that is routinely denied to other busy private individuals such as corporate executives. Special favoritism for Trump got her in trouble last year when she was reversed and rebuked by an appellate court for creating an “unprecedented exception” in the law for Trump and other former presidents by barring the Justice Department from using the classified documents in its investigation.
At the same time, Trump’s off-the-shelf arguments have merit. So what if Judge Cannon looks for a middle ground and sets the trial date in March or April of 2024? That would give Trump an extra four or five months to prepare, but still be some distance from the November election.
But then that would put her on a collision course with Bragg’s Stormy Daniels case, which is currently set for trial on March 25 in Manhattan.
But wait, you ask — if Trump is so busy running for president, how can he go to trial in Manhattan on March 25? Actually, Trump’s attorneys invited that trial date when, at his arraignment in April, they objected to Bragg’s proposed January 2024 trial date but then represented to the court, without asking for an indefinite delay or mentioning Trump’s consuming campaign commitments between now and the election, that “we think later in the spring next year [2024] might be…a more realistic plan at this point.”
In other words, Trump is too busy campaigning for president to appear in a federal court in Florida before November 2024, but not too busy to appear in a Manhattan state court before then. In fact, Trump’s attorneys, having invited a spring 2024 trial in New York, can now cite that very trial date to Cannon as one reason for an indefinite delay of the classified documents case.
If that sounds like Cannon is being played — well, that’s what it sounds like.
Cannon could take the March 25 trial in New York as a reason not to look for a middle ground. She could thus put the classified documents trial off until after the election. Such a decision would be followed by an inevitable Justice Department appeal, which could take months to resolve.
Setting a trial date is a routine matter in most federal criminal cases, but in this one, it could be the ball game.
Gregory J. Wallance was a federal prosecutor in the Carter and Reagan administrations and a member of the ABSCAM prosecution team, which convicted a U.S. senator and six representatives of bribery. His newest book, Into Siberia: George Kennan’s Epic Journey Through the Brutal, Frozen Heart of Russia, is due out in December.