For years, faced with civil, congressional, and criminal investigations, Trump has returned to one strategy: delay.
Now, because of the nature of the charges he faces in the federal Mar-a-Lago indictment, he’ll have ample opportunity to employ those tactics again, likely pushing his trial beyond the November 2024 election.
Special Counsel Jack Smith emphasized in remarks at the Justice Department last week that he was committed to a “speedy trial” for Trump. But attorneys experienced in national security law told TPM that even with a federal judge committed to dispatching the case with speed, prosecutors would face an array of challenges to have the case tried and resolved — absent any plea deal — before Nov. 5, 2024.
They include:
- The case has classified information at its center, setting up rigorous rules that parties need to follow to both protect state secrets and determine what can be disclosed for the case.
- Prosecutors will have to decide what classified information is too sensitive to be handed over, and what needs to go to Trump’s defense.
- The laws governing how classified information is handled at trial allow immediate appeals, potentially dragging out the case.
- U.S. District Judge Aileen Cannon for the Southern District of Florida has limited experience trying criminal matters, and national security cases in particular. Given that she said in an opinion last year that Trump deserved special treatment as a former President, she may be hostile to the government’s case, which may also slow things down.
It’s not clear how long a delay these factors might cause. It’s not unusual for complex criminal trials to take more than 18 months to go from indictment to trial; one recent case involving the theft of national defense information by CIA technician Joshua Schulte was charged in June 2018; his first trial began 16 months later, in February 2020.
Special Counsel Smith and the Justice Department have likely prepared for the potentially time-consuming difficulties involved in prosecuting the case. Attorneys told TPM that Smith could have prepared at least some of the classified discovery before bringing charges, potentially shortening the time; there’s no way that Smith is unaware of the fact that Trump is running for President next year.
There are few examples of Espionage Act prosecutions for willful retention of national defense information, however, and each case is different. And none involve a former president with entire media organizations and a political party largely in his thrall.
If Trump wins in 2024, the prosecution could meet an untimely end in even stranger territory. Trump would assume control once again over the Justice Department. He would also have the hitherto never-exercised power to pardon himself.
But several attorneys with experience in national security law and criminal matters told TPM that it would likely be difficult to resolve the case by Election Day.
Brian Greer, a former attorney in the CIA general counsel’s office, told TPM that he doubted the case would make it to trial by the November 2024 election.
Peter Zeidenberg, a former federal prosecutor who has defended national security cases, told TPM that “it would be a challenge to get it done beforehand.”
“You’d have to have a very aggressive judge setting an aggressive schedule,” he added.
Scott Greenfield, a criminal defense attorney, told TPM that Judge Cannon, if she declines to recuse, would have a lot of latitude to keep the case moving slowly.
“There’s plenty of ways to delay a case, its basically up to the judge if she’s gonna push this forward or allow dilatory tactics, or take her sweet time on everything,” he said. “That part isn’t known yet.”
Secret materials
One of the reasons the case is more likely to move slowly before going to trial stems from the Classified Information Procedures Act, the law which governs how classified information is handled in criminal cases.
Prosecutors will likely have some material — non-classified — ready to hand over to Trump’s legal team. The more difficult questions come down to how the government will sort out classified material relevant to the case, and how much of the records at issue end up being declassified for jurors.
“They’re gonna have all of the non-classified discovery ready to go because they want an aggressive, quick trial,” Zeidenberg said, adding that he had cases “all the time” where prosecutors were slow in providing material.
The case relies on classified information. Per the indictment, Trump held onto records having to do with the country’s nuclear capabilities, as well as various examples of detailed military planning.
Information about those records — critical both to the prosecution and the defense — will have to be transmitted under a protective order, issued by Judge Cannon. From there, prosecutors will have to coordinate with the various federal agencies involved in the documents’ creation to determine what can be shared, and in what form.
“The question is how much material do they have already prepared to hand over by coordinating with the agencies,” Greer, the former CIA general counsel attorney, told TPM.
The most likely outcome, experts said, is the use of the “Silent Witness rule” — a procedure where jurors can see a classified record in full, but open testimony about the document is restricted to generalities.
What’s important is that sorting these questions out presents a morass which could significantly lengthen the amount of time it takes to bring the case to trial.
The Cannon factor
Judge Cannon will have opportunities throughout to slow the case down.
It’s not clear that she will do so. Last year, Trump filed a civil suit in Cannon’s court, which she used as an opportunity to issue an injunction halting the criminal investigation for three months.
That ended after the 11th Circuit Court of Appeals issued a terse opinion smacking down Cannon’s involvement in the case.
Cannon lacks experience trying criminal cases; a New York Times article on Wednesday identified 14 days of criminal trials that she’s presided over since Trump appointed her to the federal bench in 2020.
“Cannon is a new judge, she probably has very little experience with classified information,” Zeidenberg said. “It seems unlikely to me that they’re gonna have a trial set and completed before the election.”
Many of the rulings on specific questions around classified information will be immediately open to expedited appeal under the Espionage Act, though in the timeframe of the judiciary, “expedited” has a relative meaning.
Other matters, like how much time the sides will have to make pretrial motions and the schedule she sets for responding to any eventual motion to dismiss, will remain in her hands.
“Maybe she does not want to be tarred for the rest of her career as a Trump sycophant,” Greenfield remarked.
“What’s the worst that happens, you get reversed?” he added. “It happens all the time.”
Todd Blanche, an attorney for Trump, didn’t return TPM’s request for comment.
