No way the documents case goes to trial before the 2024 election.
No way the documents case goes to trial before the 2024 election.
A few days after former president Donald Trump was indicted in Florida by special counsel Jack Smith, I told our friend Hugh Hewitt that I didn’t believe the case could be tried prior to the 2024 election — a subject Rich and I also kicked around on the podcast. Today, the news is that Trump has formally sought to postpone the trial until after the election.
To be sure, this is a strategic move on the former president’s part. For all intents and purposes, if the trial is postponed until after the election, there will never be a trial if a Republican wins the presidency. As I’ve pointed out, no pardon of Trump would be necessary. Instead, a Justice Department run by either Trump (though I don’t believe he is electable) or another Republican president would simply dismiss the case. (Judge Emmet Sullivan’s shenanigans in the Michael Flynn case notwithstanding, the executive branch does not require the judiciary’s permission to withdraw a prosecution.)
Nevertheless, the media-Democratic complex is sure to spin Trump’s delay strategy as a corrupt gambit in which he anticipates pardoning himself. This would be wrong, and not just because a pardon would not be needed. Unlike Trump’s meanderings about the Presidential Records Act, the delay strategy is not just legally sound; it is legally inevitable because classified intelligence pervades the Mar-a-Lago documents prosecution. (There are other reasons why Trump’s delay strategy is sound, but I’ll address them in a separate post.)
As I discussed with Hugh and Rich, the centrality of classified intelligence to the case brings it under the control of the Classified Information Procedures Act. Under CIPA, admissibility issues must be litigated before the trial starts. Having been through such litigation, I’ve described it as “a pretrial trial of the trial.” Such cases are uniquely subject to delay, mainly due to the standard “graymail” defense strategy.
To begin with, the defendant must retain lawyers who can qualify for a security clearance. Some of the evidence in this case is said to include documents that are (or by Trump’s dubious lights, were) classified at the highest, limited-access level. Unless the government is going to try to withhold those documents from the defense (which would open another constitutional can of worms), that means the lawyers have to get extraordinarily high clearances.
The background investigation for that is exacting. It takes time. There are, moreover, two defendants in the case — Trump and his aide Walt Nauta. Although Nauta is only charged in a single obstruction-conspiracy count — i.e., not in the 31 counts specifically relating to illegal retention of national-defense information — the classified documents are central to the obstruction allegation, so he is demanding equal access to the classified information. If Judge Aileen Cannon agrees, as I suspect she will, that means both sets of defense lawyers would have to obtain clearances.
That is already proving time-consuming, but it doesn’t even scratch the surface of grounds for delay.
Under CIPA, the government must declassify the evidence it intends to offer. That’s not much of a problem; indeed, Smith must have thought it through before indicting. The real fun starts when the defense then demands to inspect more classified information than the government wants to provide. This often leads to extensive motion practice (under seal) because, just as the government doesn’t want to show classified intelligence to the defense, the defense doesn’t want to tell the government why the additional intelligence it wants to inspect and offer into evidence is somehow relevant to the case. (CIPA inevitably leads to defense objections that, because the Constitution does not permit the burden of proof to be shifted to the accused, a defendant should not be forced to proffer his defense unless and until the government proves its case at trial. It’s a losing argument, but not a specious one, and it takes time to litigate.)
This brings us to the pretrial trial of the trial: Assuming the government and defense can agree on the world of potentially relevant classified information, the defense must establish that the information it wants to admit is probative and admissible despite the government’s objections. That can and often does entail extensive evidentiary hearings. (Admissibility rulings must be based on normal evidentiary standards, which are designed to admit even marginally relevant evidence — i.e., the defense is not required to meet a higher burden of relevance just because the information is classified.)
I bet you can already see why the defense in classified information cases is derided as “graymail.” It is a strategy reminiscent of blackmail. Very often, the classified intelligence the defense says it wants to introduce is not particularly relevant or exculpatory. But importantly, the defense knows (a) it is highly classified information that the government does not want to declassify so it can be used in a trial, and (b) nothing is more likely to get a conviction reversed on appeal than a court’s suppression of evidence that a defendant claims is vital to his constitutional right to mount a defense — so judges tend to err on the side of admitting defense evidence of dubious relevance, even if the government vigorously objects.
Let me pause here to address a common misunderstanding about the Mar-a-Lago documents case. I’ve been asked a number of times whether there will be a need to have the jury cleared for classified information. No. The point of CIPA is to hash out the classified information issues before the trial starts. We don’t have secret trials in the United States. Criminal trials are public proceedings, and the evidence presented becomes part of the public record. That is a big reason why the government often hesitates to file charges in national-security cases even where serious crimes have been committed — the Justice Department knows that if it brings the case, it must comply with due-process rules that are apt to mandate revealing lots of sensitive information, including intelligence methods and informant identities. This is part of why, again, it’s such a heavy lift to get classified-information cases to trial.
Let’s get to a couple of other unique CIPA wrinkles that complicate matters.
First, CIPA is the only statute I know of that empowers the attorney general to order judges to suppress evidence. Here’s how it works. If the trial judge rules, over the government’s objection, that evidence the defense seeks to introduce is admissible, the government then has a choice: It can declassify, enabling the evidence to be presented to the jury; or it can propose a “substitution” — i.e., a statement to be read to the jury that concedes certain facts but withholds the classified information. Sometimes, these substitutes work. (I was able, after over a year of litigation, to negotiate one with defense counsel in the Blind Sheikh trial in 1995.) But they are often inadequate because the law is that the defendant’s constitutional right to present a defense may not be compromised for the sake of the government’s need for national-defense secrecy. That is, a substitute is inadequate unless it enables the defendant to make the same points in arguing the case to the jury that he would have been able to make if the disputed information had been declassified.
Let’s say that the defendant objects and the judge agrees that the government’s proposed substitution is inadequate. At that point, the attorney general may order the judge not to permit the disputed classified information to be admitted as evidence. But while the executive branch is supreme in matters of national security, the judiciary remains supreme on matters of due process at trial. The upshot: Although the court must honor the AG’s suppression order, the court may dismiss counts, or even the entire indictment, if the judge decides that the order deprives the defendant of a fair trial.
The second CIPA quirk involves appeals. In the vast majority of criminal cases, it is possible get to trial reasonably quickly. That’s because (with exceptions not relevant here) the parties are not permitted to appeal the judge’s pretrial rulings until after the trial is completed, the defendant is convicted, and sentence is imposed. (I’ve omitted acquittals because, if the defendant is found not guilty, double-jeopardy principles usually prevent any appeal by the government.) Under CIPA, to the contrary, the government is permitted to appeal not only prior to trial but, in some instances, during the trial (if the latter happens, then the case must be adjourned in the middle of trial until any appeal is resolved, which can take weeks). This is a prescription for delay.
The CIPA system provides powerful incentives for gamesmanship and delay. It is also very hard for prosecutors to navigate for political reasons that go beyond CIPA’s unwieldiness.
In the standard federal criminal case, the Justice Department can simply order law-enforcement agencies (most of which are Justice Department components) to provide the evidence and information that prosecutors need to both prove the charges and comply with due-process discovery obligations. In stark contrast, classified-information cases call for prosecutors to try to pry evidence from intelligence agencies, such as the CIA and NSA. It is not enough to observe that these agencies are independent of the Justice Department; they are also not police agencies — the successful prosecution of a criminal case is not a high priority for them. They believe their mission to defend the United States, including its global allies and interests, is the highest national priority; therefore, they weigh the imperative of national-defense secrecy more heavily than the need for due process in an individual legal case. They do not meekly surrender evidence just because a prosecutor says, “I need that.” The resulting disputes take time to sort out and often can only be resolved by top executive-branch officials.
Bottom line: The more classified information the Trump defense demands, the more fighting Smith is going to have to do with U.S. spy agencies — and that’s wholly apart from the extensive litigation contests he’ll have wage with the defense (once the lawyers finally have clearances) and, potentially, the trial court and the appellate courts. Even if Trump’s dance card were not already overflowing with other criminal and civil cases, it would be nigh impossible to get this case to trial prior to Election Day 2024.