Judge Eileen M. Cannon's decision not yet to set a date for former President Donald J. Trump's classified documents trial reflects how her handling of the case might impact Mr. Trump's own strategy of delaying the trial. This is the latest sign of what is happening.
It is not impossible that the case will be brought to court before election day, but the path to achieving that is extremely narrow. And the question of when, or even if, the charges against Trump will go before a jury depends largely on how Judge Cannon handles a series of pretrial issues in the coming months, and many legal experts say the issue could be tried by a jury before Judge Cannon. It will become unnecessary much faster.
Judge Cannon was appointed by Mr. Trump towards the end of his term, but has only served as a judge for four years. She has limited experience overseeing trials of any kind, including former presidents and current candidates who illegally removed high-level state secrets from the White House after leaving office and thwarted the administration's repeated efforts to retrieve it. Needless to say, there was a trial involving explosive allegations that he had done so.
In recent months, she has been scrutinized by often critical legal scholars and reporters, with each of her most nuanced decisions in the glare of the spotlight.
Nancy Gartner, a former federal judge appointed to the bench by President Bill Clinton, said new jurists dealing with important issues should be given some leeway. But she added that Judge Cannon had placed himself outside normal boundaries with his languid pace and willingness to give some of Trump's “meshgene motions” a sober audience.
Judge Gertner said, “As a new judge in a big case, she may be just being careful, but given the amount of time it has taken her and what she's allowed, it seems like she's going above and beyond.'' I can see it,” he said. “She's treating everything the defense has done as if it raises serious and important issues, which is simply not true.”
Throughout this case, Judge Cannon is prepared to spend significant time directly hearing legal claims that many federal judges are likely to reject out of hand, or at least decide more quickly on the merits of written submissions. It was shown that there is.
In April, for example, she held a hearing to consider giving two of Trump's co-defendants, Walt Nauta and Carlos de Oliveira, detailed indictments to supplement their stated charges. A meeting was held. In the indictment.
Such documents are rarely given to criminal defendants. Although Judge Cannon ultimately denied her request, her decision to bring the matter to court in the first place was unusual.
Perhaps even more unusual was the decision to set a hearing for late June to determine what is known as the scope of the prosecution team working under Special Counsel Jack Smith, appointed to oversee the federal prosecution. It was another decision included in her new scheduling order. Mr. Trump.
Prosecutors fiercely resisted the move in March, telling Judge Cannon that such a case had never been brought before in her Southern District of Florida and that there was no other case law allowing it. He said there was no legal authority for the
However, the public hearing will now take place over three full days. His decision to put the appeal on hold means Trump's lawyers can possibly investigate the legal twist. That is, whether they have a right to learn more from prosecutors about how they collected the evidence they presented to the defense as part of their case. discovery process.
The issue began to unfold four months ago, when Trump's lawyers told Judge Cannon in court papers that more discovery was needed. They discussed how Mr. Smith worked with a wide range of stakeholders in the U.S. national security establishment, including officials at the National Archives and top officials from the intelligence community, the Department of Defense, and the Department of Justice in building the case against Mr. Trump. Specifically, I asked for information on whether or not they had done so.
Lawyers hope the information will strengthen their case that Mr. Smith worked with the White House and other officials to prosecute Mr. Trump. And if Judge Cannon says they can get it, the case will be further delayed as prosecutors go through various federal agencies to retrieve it and turn it over to the defense.
Another decision handed down by Judge Cannon this week is likely to cause further delays. The move would push back until mid-June the deadline for Trump's lawyers to submit key documents detailing an inventory of classified materials they plan to use at trial.
Submitting that inventory is critical because it will begin what will likely be a long and bitter battle between the defense and prosecution over what classified material the jury and the public will ultimately hear. be.
Smith's team had originally asked Judge Cannon to force the defense to submit confidential submissions by mid-March. Meanwhile, Trump's lawyers initially insisted on June 17th.
Judge Cannon last month set a deadline of May 9, as if to split the difference. But after Trump and Nauta begged for a delay at the last minute, he suddenly changed his mind on Tuesday and granted the defense's original request.
“Given the way things are unfolding, it's extremely unlikely that the case will go to trial before November,” said Brian Greer, a former CIA lawyer who specializes in matters involving classified materials.
Greer, who has been following the case closely, noted that Judge Cannon's new date for the hearing was actually the second time the deadline, originally set for November, had been changed.
He also noted that the judge's new calendar did not include all required filings regarding classified documents. The government will still have to submit its own set of documents on what kind of classified material should be revealed in court, a process that will of course take longer.
Further complicating matters, Judge Cannon's calendar does not include any deadlines for considering — let alone deciding — some of Trump's most difficult and potentially consequential motions. That's not true. Two of his motions have been sealed for more than two months and have not yet been made public.
One of the closed motions revolves around Trump's undisclosed allegations that members of Smith's team engaged in prosecutorial misconduct, a charge the government will vigorously contest. It is certain that it will happen.
Another sealed motion, also likely to be a long one, challenges the legality of the FBI's investigation into Mar-a-Lago, Trump's private club and residence in Florida. . It also challenges how the government obtained audio notes from one of Trump's former lawyers, Evan Corcoran, in violation of normal attorney-client privilege protections.
In addition, more difficult challenges are looming that could add even more complexity and delays.
Just this week, for example, Mr. Trump's lawyers said they may soon file a motion charging prosecutors with failing to preserve the integrity of classified documents at the heart of the case. However, it remains unclear how seriously Judge Cannon will actually take the motion if it is filed.
Greer said her record in the case suggests she has accepted whatever the defense chooses to send her.
“Certainly, her propensity up until now has been to listen to just about anything,” he said.