Last night, attorneys for Donald Trump and his valet Walt Nauta rattled the bag of ball bearings they’re going to be strewing in their wake in an attempt to trip up Special Counsel Jack Smith — or at the very least delay him long enough that Trump can get himself reelected and use the White House to dismantle the whole prosecution.
Styled as an opposition to the government’s proposed December trial date, it was tacitly an attack on the court’s own scheduling order, setting the case for August 14. But more than that, it was an preview of the dozens of ways Trump will try to delay the trial until 2024, and then claim that he’s entitled to push it off until after the election. In the short term, Trump requests that the court take the trial off the calendar altogether, to “allow time for development of further clarity as to the full nature and scope of the motions that will be filed, a better understanding of a realistic discovery and pre-trial timeline, and the completion of the security clearance process, such that the Defendants can be informed fully as to the involved evidence and thus be able to present more informed arguments as to the relevant legal issues.”
In other words, if they can’t convince Judge Cannon to bone this case somehow, they’re going to plaster the docket with motions and interlocutory appeals in hopes of running out the clock.
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“The legal questions are significant and present issues of first impression,” Trump and Nauta write, citing “the intersection between the Presidential Records Act and the various criminal statutes at issue,” the constitutionality of the Special Counsel law, and “the potential inability to select an impartial jury during a national Presidential election.” Trump further telegraphs that he intends to challenge “the classification status of the documents and their purported impact on national security interests,” and “the propriety of utilizing any ‘secret’ evidence in a case of this nature.”
“The Government’s apparent view that these unprecedented issues should be adjudicated on an expedited basis is simply untenable and ignores the magnitude of this case,” he tut-tuts, as if asking for a mere four-month delay beyond SDFL’s speedy trial guideline is the same as expediting it.
To be fair, no one really believes this case is going to trial in 2023. Particularly not under the gavel of Judge Cannon, who last year allowed Trump to delay the investigation for three months to make bizarre claims of executive privilege over classified documents. If she hadn’t been unceremoniously slapped down by the Eleventh Circuit, Cannon would likely still be letting him dither over the seized evidence.
Last year, Trump was represented by attorneys Jim Trusty and Evan Corcoran, who filed a complaint seeking “judicial oversight,” citing “farcical Russian collusion claims” and the FBI’s supposed “bias against President Trump and his supporters.”
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Since then, Corcoran made himself a witness after telling the government that he’d searched Mar-a-Lago for classified documents and none remained, and Trusty quit Trump’s legal team approximately five seconds after the indictment dropped. This go round, Trump is represented by former Florida Solicitor General Chris Kise and white collar defense attorney Todd Blanche. And while they, too, hint at but do not come out and declare that Trump magically declassified the documents with the power of his mind, they are not prone to the same histrionic and unprofessional ranting about bias infecting the entire DOJ. (Although their client did recently take to social media to opine that Jack Smith “looks like a crack head.”)
Instead, they argue that Trump’s position as Biden’s political rival will require extreme care from the court to avoid the appearance of impropriety, including by forbidding the use of classified evidence as allowed under the Classified Information Protection Act (CIPA).
“In general, the Defendants believe there should simply be no ‘secret’ evidence, nor any facts concealed from public view relative to the prosecution of a leading Presidential candidate by his political opponent. Our democracy demands no less than full transparency,” they write.
Similarly, they add that Trump and his manservant Nauta are far too busy trying to get back to the White House to be bothered with a trifling Espionage Act prosecution:
President Trump is running for President of the United States and is currently the likely Republican Party nominee. This undertaking requires a tremendous amount of time and energy, and that effort will continue until the election on November 5, 2024. Mr. Nauta’s job requires him to accompany President Trump during most campaign trips around the country. This schedule makes trial preparation with both of the Defendants challenging. Such preparation requires significant planning and time, making the current schedule untenable and counseling in favor of a continuance.
This is undercut somewhat by Trump’s insistence that he can’t be prosecuted in Florida right now because he’s too busy being prosecuted civilly and criminally by the state of New York. And perhaps by the state of Georgia, (he did not add, for obvious reasons). And for his role in the events of January 6, 2021, (ditto). Plus there’s the second E. Jean Carroll defamation case in January (we could play this game all day).
The DO YOU EVEN KNOW WHO I AM argument might not play well in every courtroom, but it worked the last time with Judge Cannon, who arrogated jurisdiction to herself based in part on Trump’s status as the former president.
“As a function of Plaintiff’s former position as President of the United States, the stigma associated with the subject seizure is in a league of its own,” she wrote. “A future indictment, based to any degree on property that ought to be returned, would result in reputational harm of a decidedly different order of magnitude.”
So far, Judge Cannon has been playing it pretty straight. This morning she permitted a brief postponement of the CIPA hearing from this Friday to the following Tuesday, in light of Nauta’s attorney Stanley Woodward’s unavailability. Let’s see if she signals her willingness to burn down her own reputation some more — and tempt the Eleventh Circuit to intercede again — by letting Trump postpone the case indefinitely.
US v. Trump [Docket via Court Listener]
Liz Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.