DOJ Request For Delay Of Trump Florida Trial Has Nothing To Do With Strength Or Weakness Of The Case
Please ignore the people who are claiming that it reflects that the government is afraid to present its case, or that it thinks the case is imploding. And most of all, please ignore the conspiracy theorists who construct elaborate arguments and theories around it and so many other things.
When Judge Aileen Cannon scheduled the trial of Donald Trump in the Mar-a-Lago documents case for August 14, 2023, no one who knew the slightest thing about court procedure expected that to hold. Among other things, Trump doesn’t even have a full defense team (his prior team quit), his new lawyers will need to get security clearances to view classified documents, and procedures for the handling and control of classified material would have to be worked out.
An August trial never was going to happen.
Robert Barnes tweeted at the time:
The scheduling in the Trump case is just a tentative date, and highly unlikely to occur at that time. It’s a common process in many federal courts to schedule a Speedy Trial Act early deadline, then let each side seek continuances as needed. Still unlikely trial occurs in 2023.
On June 23, 2023, the government filed to delay the trial to December. The motion was unopposed by Trump, though Trump’s team reserved the right to contest the proposed dates (emphasis added):
The government has received and reviewed the Court’s Omnibus Order Setting Trial Date and Establishing Pretrial Instructions and Sentencing Procedures (ECF No. 28). For the reasons discussed below, the government files this motion to continue the trial date to December 11, 2023, and to propose the associated intervening deadlines discussed below. A declaration in support of this motion is being filed herewith as Exhibit A. See Local Rule 7.6. Government counsel have conferred with counsel for defendant Trump and defendant Nauta in a good faith effort to resolve the subject matter of this motion by agreement. Defense counsel confirmed they do not oppose an adjournment of the current trial date and request a status hearing with the Court to address the schedule in this action. Defense counsel anticipate filing an opposition to this motion addressing their objections to the government’s proposed dates.
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5. However, the case does involve classified information and will necessitate defense counsel obtaining the requisite security clearances. As the Court is aware, that process is already underway. According to the Litigation Support Group, decisions on interim clearances for defense counsel can and should be made within 48 hours of submission of the relevant forms. Ex. A ¶ 4. Interim clearances will enable counsel to review the vast majority of classified discovery. Id. ¶ 5. The decision on granting the final clearance required to allow counsel’s review of the remaining small number of classified documents is estimated to occur within 45 to 60 days of form submission. Id.
6. In addition, the associated legal process under the Classified Information Procedures Act, Pub. L. 96–456, 94 Stat. 2025, 18 U.S.C. App. III §§ 1–16 (“CIPA”), will inject additional time into the leadup to trial that otherwise would not be involved….
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9. For all of these reasons, the government respectfully moves the Court for an Order1:
a) continuing trial in this matter until December 11, 2023 (jury selection to begin that date);
b) excluding the delay resulting from the continuance of trial from the speedy trial calculation in this case under 18 U.S.C. § 3161;
c) continuing the Calendar Call for trial until December 5, 2023;
d) setting the deadline for pretrial motions under Federal Rule of Criminal Procedure 12(b)(3) as July 31, 2023; and
e) continuing the deadline for all other pretrial motions and motions in limine until November 20, 2023.
The government the same day filed a motion for a conference pursuant to the Classified Information Procedures Act:
Accordingly, the Classified Information Procedures Act, Pub. L. 96–456, 94 Stat. 2025, 18 U.S.C. App. III §§ 1–16 (“CIPA”), will play a significant role in this case. It will govern, pretrial, how the Court oversees classified discovery and rules on the potential discoverability of certain classified information. In addition, CIPA provides a framework for the Court to decide, again pre-trial, issues related to the use and admissibility of classified information at trial, and it sets forth procedures for handling questions related to classified information that might arise during trial. Last, CIPA establishes certain appellate procedures.
For the reasons set forth above, as it typically does in prosecutions involving classified information, the government hereby moves pursuant to Section 2 of CIPA “for a pretrial conference to consider matters relating to classified information that may arise in connection with the prosecution.” 1 18 U.S.C. App. 3 § 2. In the motion for a continuance being filed contemporaneously with this motion, the government is providing the Court and defendants with a proposed schedule for when the different proceedings CIPA establishes may occur.
The request for a continuance was a matter of routine, and fully expected. “Shipwrecked Crew” on Twitter, who is representing many J6 defendants, tweeted:
Yesterday’s motion to move Trump documents trial date back to December is a routine procedural move that both sides agreed to — the Govt just filed the paperwork. The Aug. date was set just to satisfy the Speedy Trial Act requirement. Now the sides will agree to “exclude time” under the Act and move the date back. I’m sure the December date will change too. The Co-Defendant hasn’t even been arraigned yet. His attorneys will need to be part of the discussion about when the trial will take place. Don’t pay attention to anyone who tries to read something into the motion. Happens in every federal criminal case.
The government already has produced unclassified documents to Trump’s nascent team:
On June 21, 2023, per the protective order issued in this case (ECF No. 27), the government provided to Defendant Donald J. Trump 1 its first production of unclassified discovery (“Production 1”). The production was made available in three parts. The first part includes, inter alia, documents obtained via subpoena; evidence obtained via search warrants; transcripts of grand jury testimony taken before a grand jury in the District of Columbia and transcripts of grand jury testimony taken before a grand jury in the Southern District of Florida; and memorialization of witness interviews conducted through May 12, 2023. As we have informed counsel, it is the government’s intent to disclose promptly all witness statements and associated memorialization of those statements, even if they would not be deemed discoverable under 18 U.S.C. § 3500. The second part includes a reproduction of “key” documents and photographs included in Production 1 that are referenced in the Indictment and others determined by the government to be pertinent to the case. The third part consists of complete copies of closed-circuit television (CCTV) footage obtained by the government in its investigation. To facilitate review, the government also identified and separately produced for the defense “key” excerpts from the CCTV footage, including excerpts referenced in the Indictment or otherwise determined by the government to be pertinent to the case.
The timeline proposed by the prosecution is fast for a case of this importance. While the “facts” may not be complicated, the procedures for exchanging classified discovery will be, as will some of the legal issues.
It’s really not difficult to understand.
Please ignore the people who are claiming that it reflects that the government is afraid to present its case, or that it thinks the case is imploding. And most of all, please ignore the conspiracy theorists who construct elaborate arguments and theories around it and so many other things. These people are misleading — most of all — Trump supporters.
Parting thought, if they are misleading Trump supporters about the Trump trial delay, about what else and who else are they misleading you?
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Comments
No one believed the case would go to trial in August, but everyone believed it would be the defense to ask for the delay. As Jonathan Turley noted in a piece [I will provide later as I am using my phone] before this motion, Jack Smith knows that the right to a speedy trial is geared toward the defense, not the prosecution. There did not appear to be a negotiated motion: the government requested an extension and Trump’s attorneys agreed. It seemed to a game of chicken as to who requested it first. True, there was never a doubt that the trial was not happening in August. Jack Smith was not asking for a delay to ensure Trump”s rights. That is laughable. He made a soeedy trial headlines. A simple Google search shows the glee of Trump haters who reported breathlessly how Jack Smith was not messing around.
Is the right to a speedy trial waived when the defendant posts bail? And what does ‘speedy’ mean? Three months? Six Months?
I heard speculation from several sources that indicated government wanted a speedy trial but more informed and respected people all scoffed at the timeline. Most seemed to agree with you that it would be Trumps team that would request a delay.
I shouldn’t have said everyone believed Trump would ask, but Jack Smith wanted the headline.
Probably so. The prosecution would benefit PR wise in court of public opinion if they could force Trump to seek a delay. Your description seems wholly logical.
The bottom line though is this is all posturing and gamesmanship it isn’t really material to the trial. There are logistical hurdles to be overcome in granting appropriate levels of security clearance to Trump’s Attorneys and in working out who gets to view what discovery where and under what conditions. All that has to be agreed to by both legal teams then signed off by the Judge.
The government is going to do what they think is most advantageous to them
Whether it’s win the case or disrupt his campaign or hurt his chances of getting re-elected
Simple as that.
Question for the attorneys on this site.
Since Grand Inquisitor Smith is certain to get an indictment of Trump for Jan 6 events, can Trump get for cases combined in Florida where he at least has some chance for a few objective jurors.
With all due respect and recognition of your legal expertise, given the legal/illegal antics of the government as of late, I prefer to remain highly skeptical, as is my nature as a scientist.
That, and the fact that all the conspiracy “theories” about the Biden regime have been proven true.
Speculation on my part. They will wait to drop the J6 indictment until the day Joe resigns from office due to health issues and pardons Hunter. FJB
We don’t have a Government, we have a dictatorship
Things ain’t great that’s for sure, but a dictatorship? Nah. That’s just not true. How do I know? If we lived in a dictatorship you wouldn’t feel confident in writing the statements you are fond of here at LI.
Not enough? Try this. The President’s son is in the news. Examine what he is probably guilty of. Now compare it to what Qusay and Uday Hussein (Saddam Hussein’s sons) were guilty of and not only got away with but had the backing and participation of govt agents while doing it.
When you insist on using such hyperbole and being so ‘extra’ as the kids say it undermines your other less dramatically expressed points. Many of which are quite well expressed.
We don’t yet have a dictatorship. A dictatorship would have taken care of LI and all who’ve ever posted on the message boards.
What we do have is bumbling incompetent fools who act as if they are stumbling around in a locked dark closet.
Working toward a dictatorship, not quite there yet.
I believe that the government will drag this whole mess out as long as they can to leak damaging things to the msm concerning Trump. They realize that a trial is final barring an appeal, and if Trump is found not guilty then their leverage with the msm is gone for the feds. If they can keep this pot stirred, then they are doing their job. I think the venue being FL has the prosecutors terrified.
The prosecution knows if they can get enough of the charges to a jury, they’ll get at least *one* conviction. Juries tend to develop this “Well, we went through all this so we should at least vote for one of these so we didn’t waste our time.” Hopefully, Trump’s lawyers can hammer these charges one at a time and get them thrown out in sequence by the judge (because they all are based on the same flimsy legal premise),
Yes, or you have many charges ranging from minor to very severe. If they’re not sure about the heavy charge, they might split the difference and vote for a lighter charge, even if that’s not proved either.
Judges should give specific instructions, as a matter of routine, not to do this. The fact that they don’t means the US wants to rely on this habit to get convictions. Disgraceful. I am emotionally attached to this matter because it almost happened in a trial where I was on the jury. 3 or 4 out of 6 of us were thinking that way.
Trump should counter that he wants the trial right now.
The government shouldn’t need a delay. It indicted him so it thinks it has the necessary level of evidence to convict. No delay is needed.
His lawyers don’t have TS-SCI clearances.
I do foresee them dragging the trial out – in order to get Trump off the campaign trail, even for short periods. Or make him look bad if he doesn’t go to court. It would be part of the “all’s fair in love, war, and politics” philosophy of the Progressives.
I predict plenty of stupidity as this campaign season advances (more so than we’ve seen already) and some of it will be legal shenanigans.
BREAKING: This is why they want to get rid of Judge Aileen Cannon in classified docs case. Her first smackdown of Special Counsel Jack Smith:
“PAPERLESS ORDER denying without prejudice Government’s Motion to Implement Special Condition of Release. The Government seeks an order implementing a special condition of bond related to Defendants’ (Trump and Nauta) communication with eighty-four listed witnesses about the facts of the case, except through counsel.
The Government conditions its request on the filing of the non-exhaustive list under seal. Defendants take no position on the Government’s seal request but reserve the right to object to the special condition and the manner by which the Government intends to implement it.
In the meantime, numerous news organizations have moved to intervene to oppose the Government’s Motion to File Witness List Under Seal, citing the First Amendment and related legal principles. Upon review of the foregoing materials, the Government’s Motion is denied without prejudice, and the Motion to Intervene and accompanying Motions to Appear Pro Hac Vice are denied as moot.
The Government’s Motion does not explain why filing the list with the Court is necessary; it does not offer a particularized basis to justify sealing the list from public view; it does not explain why partial sealing, redaction, or means other than sealing are unavailable or unsatisfactory; and it does not specify the duration of any proposed seal. The Clerk is directed to return the Pro Hac Vice fees to the filing attorneys. Signed by Judge Aileen M. Cannon on 6/26/2023.
Well, the prosecutors in the Black Wednesday-Reichstagsbrand-January 6 trials often delayed them. They didn’t do it because they feared judge or jury would perceive their cases as weak, or would fail to cooperate.
Here we don’t quite have a show trial. We’re probably not as close to a show trial as with the January 6 cases. As far as we know, the judge has not received instructions on how to rule, and the jury won’t be given instructions to convict… on pain of whatever.
But the prosecution didn’t bring this case because they though highly of its merits. They brought it because they know who to take down, they believe they can take him down, and aren’t too particular how they accomplish it.
So, no, the delay has nothing to do with the prosecution perceiving its case as weak. Put in franker terms, it has nothing to do with the prosecution fearing they will fail to secure a conviction.
I don’t understand why anyone who knows what this indictment and trial are about would think the prosecution either would either feel weakness or would do anything that shows it.
I post my comment here because it is the post that inspired my thoughts. I have waited because I don’t want to cause a disturbance. My request and contribution are intended for the Professor and the LI team.
I would be greatly benefited to read the Professor’s constitutional analysis of the case, the actions and arguments of the prosecution, and the rulings by the court.
Does he really take it all at face value?
This prosecution is illegitimate. It is wrong; it is a grievous wrong against President Trump. He is being railroaded. He is innocent. The Constitution and Bill of Rights apply in his case, too, and if they can be removed from him then that is true for the whole of us as well.
He is an outsider, and a disruptor of the rotten-but-oh-so-satisfying-and-profitable status quo enjoyed by the conglomerate establishment in charge in DC. In just the most recent 15 years, in addition to Presidents Obama and Bush 43, there were at least SoS Hillary Clinton, VPOTUS Joe Biden, and VPOTUS Mike Pence who each removed and kept “national security documents” when their terms of office expired. They all received nodding approvals then — and stout reaffirmations now. SoS Clinton even shared hundreds of secrets in open emails for all her paying nations/sponsors to read. Charges brought: zero. Ostracism and disapproval by The Club: zero. She and all the other named infractors are part of the conglomerate establishment and therefore are Above The Law.
But President Trump? Set him up via contrivance, then get an illegal search warrant, brainstorm novel interpretations and legal theories applicable solely to him, and press charges based on sophistries fresh out of the oven.
How many false plots — all developed and carried out by credentialed persons of official authority, carrying badges and government portfolios — must it take us to discern a pattern… of intentional abuse of power, of lying, of a rigged system bent on removing the threat a redoubtable individual poses to The Club?
Is this latest malevolent persecution the necessary price the Republic must pay to get rid of Trump — and me and those like me? Necessary, to make space for an establishment-prepped-approved-and-bridled replacement? Is this at least a little distasteful?
Afterthought: I recommend to your investigation the term “attainder by process”.
My respects to the Professor and the entire LI team. For a decade I have been a fan – and an appreciative beneficiary – of the great work and education produced by everyone at LI.