Blame the Prosecutor, Not the Judge, for the Slow Pace of Trump’s Florida Case

It’s special counsel Jack Smith’s fault that the Mar-a-Lago documents case is taking as long as it is.

Author’s Note: This is the first of two columns on the status of the federal prosecution of Donald Trump in Florida, in which Biden Justice Department special counsel Jack Smith has charged the former president with 32 counts of illegally retaining classified documents and eight counts of obstruction. The second column will be published in the coming days.

T he Lawyer Left’s onslaught against Judge Aileen Cannon had to pause briefly last week, not for the first time, when the Florida federal judge ruled in favor of special counsel (for now) Jack Smith — rejecting the attempt by one of former president Donald Trump’s co-defendants to have the criminal case thrown out as a vindictive prosecution.

Democrats want Judge Cannon disqualified on the grounds that (a) she is a Trump appointee (if only, like the sainted Juan Merchan, she had had the good sense to contribute to the 2020 Biden campaign!); (b) she hews to the quaint notion that a principal constitutional duty of United States courts is to vindicate the due-process rights of defendants against overbearing government action; and (c) by now, they expected Trump to be convicted and starting his first decade at the federal penitentiary in Leavenworth, Kan. Yet he’s a free man and the case seems stuck in the mud — and that simply must be Cannon’s fault.

‘Toto, I Have a Feeling We’re Not in Manhattan Anymore’

Progressives and their favorite prosecutors prefer such venues as Manhattan’s kangaroo courts — home to Judges Merchan and Arthur Engoron — where they know they’ll get every bounce of the ball. Special counsels investigating Republican presidents habitually set up shop in the District of Columbia — even to the point, in Smith’s indictment of Trump for illegal document-retention, of using a Washington, D.C., grand jury to investigate a case in which every significant act occurred nearly 900 miles away in Palm Beach, Fla. By using a D.C. grand jury, such special counsels get the benefit of having any disputes resolved by a D.C. federal judge (for years, it was Chief Judge Beryl Howell, protégé of the fiercely partisan Democratic senator Patrick Leahy), a boon when the prosecutor seeks to pry evidence from reluctant witnesses — including defense lawyers and executive officials theretofore under the naïve impression that their communications were privileged.

Judge Cannon, by contrast, is putting prosecutors through their paces. You’d almost think the defendants were presumed innocent and the government bore the burden of proof!

News flash: This is how it is supposed to go, and how it usually goes, for prosecutors. Throughout the country, most of them quickly learn to carry on without whining about it. South Florida doesn’t offer the home game Smith prefers, but notice that he is still winning most of the skirmishes that matter. It’s just that he and his subalterns are having to work for it. And when they mislead the court — about such matters as the FBI’s tampering with the documentary evidence in a case about mishandling documents — they hear about it. When they attempt to run roughshod over the defendants’ due-process rights, they hear about it. That’s what’s supposed to happen.

Reversals Come with the Territory

It has become rote among anti-Trump lawfare apologists and their note-takers to wail that Cannon has slow-walked the Florida case. The theme is that she’s in the tank for the former president, whose strategy is delay, delay, delay. The subtext is that she’s inexperienced and incompetent.

It’s a smear.

Prior to the investigation’s transfer to Smith, Cannon made a bad ruling: granting Trump a special master to review the thousands of documents and other items seized during the FBI’s execution of an unprecedented search warrant on the residence of a former president. To be fair, the ruling may not seem quite so bad in hindsight — especially after federal judges were recently instructed, in the Supreme Court’s Trump v. United States decision, to give a wide berth to immunity claims by former presidents that touch on their official executive acts. But at the time, the Eleventh Circuit federal appeals court rightly reversed Cannon.

Okay . . . so what? All judges get reversed from time to time. Just ask Washington, D.C., District judge Tanya Chutkan, an Obama appointee revered by the cognoscenti who scorn Cannon. Chutkan, along with three other judges from the D.C. Circuit, just got reversed in the immunity case. The high court’s annoyance at the Circuit’s indulgence of Smith’s unseemly rush to get Trump tried by Election Day (in the Washington, D.C., election-interference case) was muted but detectable. Chief Justice John Roberts’s majority opinion faulted the four judges for failing to perform a rudimentary inquiry to determine which allegations against the former president of the United States implicated official executive acts.

It was a gentle rebuke. Chutkan and the appellate judges are solid legal technicians, and their opinions were thoughtful efforts to get the immunity issue right. But it is hard work addressing complex questions that have inevitably arisen in the unprecedented context of multiple, simultaneous, patently political prosecutions of a former president who is currently running for president. For a federal district judge, being reversed by superior courts that have more minds and more time to deliberate over tough calls comes with the territory.

If reversal is the Lawyer Left’s new metric of competence, we’re in “physician heal thyself” territory. Smith himself has been emphatically reversed by the Supreme Court, as has left-wing legal commentator and full-throated Cannon detractor Andrew Weissmann (he of the self-described “man crush on Judge Merchan”). Notwithstanding the several progressive justices in those unanimous smack-downs (including the iconic Ruth Bader Ginsburg), the media–Democrat complex is awfully forgiving when a bien-pensant prosecutor is scorching the earth to fry Republicans and stodgy accounting firms (and the thousands of innocent people whose jobs go up in smoke).

Reasonable people, to the contrary, could hardly blame Judge Cannon — who, like all judges, doesn’t like to be reversed — for exhibiting a certain wariness in dealing with Smith, an attack-dog prosecutor who (a) has already led other judges into error; (b) is astonishingly insouciant regarding the complexities of prosecuting a former president concurrently in two separate major cases (while well aware that Trump is also being prosecuted in two other courts, and sued civilly in still others); and (c) keeps stressing the supposed urgency of getting Trump to trial prior to November — though that is not a judicial priority (as the Supreme Court just made clear in Trump), Justice Department rules forbid factoring political campaigns into law-enforcement decisions, and the defendants, the only people who have a constitutional right to a speedy trial, are not seeking one in a case involving mounds of classified discovery and novel legal questions.

In any event, Chief Judge William Pryor of the Eleventh Circuit, who was on a panel that scrutinized Judge Cannon’s work and reversed her on the special-master issue, has rejected the “orchestrated campaign” to remove Cannon from the case. Besides noting that the fact of her appointment by then-president Trump is plainly not a basis for disqualification, Judge Pryor acidly observed that the thousand repetitive submissions that have poured in feature allegations that “are speculative and unsupported by any evidence.”

Smith, Not Cannon, Has Bogged Down the Florida Case

The Florida case is not actually moving at a snail’s pace. It is moving at a normal pace for a highly complex case that teems with classified information. Cannon’s detractors misleadingly claim that she has postponed trial in the case without a date. In fact, she is moving methodically through a plethora of complex issues in hopes of soon setting a realistic trial date. Cannon has already been mocked for setting a trial date — May 20 — which Smith prodded her to set and which no one took seriously because it was utterly unrealistic. Understandably, she doesn’t want to do that again.

Prosecutions that require a heavy dose of the Classified Information Procedures Act (CIPA) are notoriously tough to get to trial, even when they do not involve unprecedented charges against a former president who is positioned to make constitutional and statutory claims that no other defendant would be positioned to make.

Even when a CIPA case is the only waltz on your dance card — which it most certainly is not in Trump’s situation — it is a full-time, resource-intensive proposition. All issues of admissibility of evidence — not just the admissibility of the government’s evidence, but of all the classified evidence potentially relevant to the case, including whatever intelligence the defense claims to need — must be litigated prior to trial and are subject to pretrial appeals. That, naturally, is something that cannot be done until the defense studies the discovery provided by the government; that, in turn, can’t happen until lawyers and investigators obtain the necessary security clearances. In CIPA cases, moreover, discovery review is physically challenging to get through because classified documents may only be reviewed in a secure, government-maintained facility.

Simply stated, in CIPA cases, prosecutors are not in control of how wide-ranging and time-consuming the pretrial phase will be. Add into the mix the fact that our multiple intelligence agencies are certain to resist providing top-secret intelligence, even to lawyers and prosecutors with high-clearance levels. The national-security side of the government’s house is a labyrinth prosecutors need not navigate in the vast majority of criminal prosecutions; it is much harder to pry relevant information from the intelligence community than it is from law-enforcement agencies. And mind you, as demanding as CIPA proceedings are, it’s not like CIPA is the only complication in the Florida case — where even the constitutional propriety of Smith’s special-counsel appointment is hotly disputed; where one of Smith’s main witnesses is a Trump lawyer, which raises significant attorney–client-privilege issues; and where there are significant immunity questions to sort out.

Because of all these complications, almost exactly a year ago, I predicted that the Florida case would never get to trial prior to the 2024 election. Far from trying to streamline the complications, Smith proceeded to exacerbate them. Three weeks after my prediction, he indicted Trump in the election-interference case in Washington, D.C. — meaning there were now two extraordinarily complex prosecutions, brought at the same time by the same prosecutor, who somehow assumed both would be wrapped up in time to celebrate felony convictions of Trump at this summer’s Democratic National Convention. At the time, Smith also knew that Trump had already been indicted in Manhattan (where a March 2024 trial date had been set), and that his indictment in Atlanta was imminent (it happened in mid August 2023). And Smith further knew that Trump also faced upcoming trials in at least two civil lawsuits in New York — including a fraud case that was sure to take over two months to try.

If Jack Smith truly believed any defendant — even one who was not a major-party candidate for the presidency — could be put through that kind of gauntlet in just a few months, then he is delusional. Prosecutors can dictate the pace of things only until charges are brought. Once an indictment is filed in court, the process takes over — meaning a prosecutor such as Smith can’t bank on timing trials and convictions to fit his political calendar because defendants, their lawyers, judges, court rules, and the Constitution all get a say in the matter.

Things in Florida seem to be moving at a glacial pace only because Smith set rocket-docket expectations that were irrational. Any analyst not obsessed by the partisan desire to get Trump convicted before the election could have told you as much.

As we’ll see in Part 2, the Florida case is also moving slowly because Smith overcharged Trump. It is possible, though, that the Supreme Court has saved the prosecutor from himself. The justices’ decision in the immunity case necessitates that Smith rethink his indictment. The question is: Will he use this opportunity to strip it down to what it should always have been — an obstruction case?