DOJ Opposes Trump Request To Delay Florida Trial Until After 2024 Election, Wants Trial This December

DOJ Opposes Trump Request To Delay Florida Trial Until After 2024 Election, Wants Trial This December

We wrote the other day how Trump Wants Florida Trial Postponed Until After 2024 Election.

Among other things, Trump said in his court filing that he cannot be ready for trial by December 11, 2023, the trial date requested by the DOJ, and that it would prejudice his ability to defend himself if the trial took place prior to the November 2024 election (emphasis added):

This extraordinary case presents a serious challenge to both the fact and perception of our American democracy. The Court now presides over a prosecution advanced by the administration of a sitting President against his chief political rival, himself a leading candidate for the Presidency of the United States. Therefore, a measured consideration and timeline that allows for a careful and complete review of the procedures that led to this indictment and the unprecedented legal issues presented herein best serves the interests of the Defendants and the public. Thus, pursuant to 18 U.S.C. § 3161(h)(7)(A), based on the extraordinary nature of this action, there is most assuredly no reason for any expedited trial, and the ends of justice are best served by a continuance.

Additionally, the legal questions are significant and present issues of first impression. The intersection between the Presidential Records Act and the various criminal statutes at issue has never been addressed by any court, and in the Defendants’ view, will result in a dismissal of the indictment. The authority, vel non, of the Special Counsel to maintain this action likewise presents a potentially dispositive issue of first impression in this Court. Additional significant matters include the classification status of the documents and their purported impact on national security interests, the propriety of utilizing any “secret” evidence in a case of this nature, and the potential inability to select an impartial jury during a national Presidential election. Moreover, the extensive and voluminous discovery, coupled with the challenges presented by the purportedly classified material that has yet to be produced, will require significant time for review and assimilation. All these questions further warrant a continuance pursuant to 18 U.S.C. § 3161(h)(7)(B)(ii). 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.

The DOJ just filed its Reply to Trump’s request, and it is asking the Court to stick with the December 11, 2023 trial date DOJ originally proposed:

… There is no basis in law or fact for proceeding in such an indeterminate and open-ended fashion, and the Defendants provide none. For the reasons discussed below and in the Government’s Motion, the Court should reset the trial date in this action for December 11, 2023.

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The Defendants chide the Government for seeking an “expedited” trial (Resp. at 1, 2, 8), but in doing so they have it exactly backward. A speedy trial is a foundational requirement of the Constitution and the United States Code, not a Government preference that must be justified. See U.S. Const. amend. VI; 18 U.S.C. Ch. 208 (captioned “Speedy Trial”)….

DOJ rejected the idea that novel legal issues necessitated a substantial further delay:

Defendants cite two allegedly novel legal issues that they claim make this case complex under 18 U.S.C. § 3161(h)(7)(B)(ii): the authority of the Special Counsel to bring and maintain this action, and the alleged intersection of the Presidential Records Act (“PRA”) with the criminal statutes charged in the Indictment. Resp. at 2, 7–8. The former is hardly an issue of first impression. In United States v. Nixon, 418 U.S. 683, 694 (1974), the Supreme Court ruled that Congress gave the Attorney General the power to appoint special counsels, and in In re Grand Jury, 916 F.3d 1047, 1052–54 (D.C. Cir. 2019), the D.C. Circuit held that a special counsel appointed by the Attorney General has the authority to investigate and prosecute federal crimes.

As for the impact of the Presidential Records Act on this prosecution, any argument that it mandates dismissal of the Indictment or forms a defense to the charges here borders on frivolous. The PRA is not a criminal statute, and in no way purports to address the retention of national security information. The Defendants are, of course, free to make whatever arguments they like for dismissal of the Indictment, and the Government will respond promptly. But they should not be permitted to gesture at a baseless legal argument, call it “novel,” and then claim that the Court will require an indefinite continuance in order to resolve it….

The legal issues Defendants raise do not justify deviation from a speedy trial date, much less open-ended deferral of considering one.

DOJ asserted that there was no voluminous discovery that should delay trial, but it’s own recitation (pp. 4-5) seemed to contradict that. There are a lot of documents, video, and other electronic discovery, non-classified portions of which have been turned over. It’s one thing for the government to say, given its limitless resources and staff, that things can be reviewed quickly, it’s another thing for a small-ish defense team to do so while also preparing for trial. IF the judge delays trial beyond December, I expect the amount of material to be reviewed will be why (that doesn’t necessitate a delay of over a year).

But the heart of Trump’s request is the election cycle, to which DOJ responded (emphasis added):

“Defendants’ claim that this Court could not select an impartial jury until after the presidential election does not justify further delay here. Resp. at 9. First and most importantly, there is no reason to credit the claim. Our jury system relies on the Court’s authority to craft a thorough and effective jury selection process, and on prospective jurors’ ability and willingness to decide cases based on the evidence presented to them, guided by legal instructions from the Court. To be sure, the Government readily acknowledges that jury selection here may merit additional protocols (such as a questionnaire) and may be more time-consuming than in other cases, but those are reasons to start the process sooner rather than later.

* * *

Moreover, the conditions that Defendants argue will make it a challenge to select a jury will not appreciably change after the completion of the election. The Government’s position is that the best way to move this case forward consistent with the Defendants’ rights and the public’s interest is to set a trial date now, with interim deadlines for CIPA procedures and motion practice leading up to that date.

I’m not seeing a hearing date set on the motion to set a trial date, so the court may decide it on the papers, or still set a hearing.

My guess? She sets December 11, 2023 as a trial date, sets pretrial deadlines, and will wait and see if a further delay is warranted as the case proceeds.

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