On Thursday, former President Donald Trump and co-defendant Walt Nauta filed their response to special counsel Jack Smith’s motion to move the start of their trial on charges related to classified documents and obstruction from August to December of this year. The defendants took an unusual position. Their lawyers told Judge Aileen Cannon there was no need to set any trial date at all. In their view, the case could and must wait at least until after the presidential election is held in November 2024.
Smith shredded the defense position in the opening paragraphs of his reply brief.
Smith shredded the defense position in the opening paragraphs of his reply brief by pointing to something so elemental that the defense team should be embarrassed. Apparently, it failed to read the statute. The Speedy Trial Act, which governs the timing of trials, requires that “In any case involving a defendant charged with an offense, the appropriate judicial officer, at the earliest practicable time, shall, after consultation with the counsel for the defendant and the attorney for the Government, set the case for trial on a day certain, or list it for trial on a weekly or other short-term trial calendar at a place within the judicial district, so as to assure a speedy trial.” In other words, the judge must set a trial date. It’s not optional.
The Speedy Trial Act makes no provision for taking the put-it-off-indefinitely approach Trump’s lawyers fought for. But the defense threw a lot of spaghetti at the wall in hopes something would stick. Nothing did. The special counsel’s office shot down each argument.
- Defendants can’t avoid a trial date because they intend to argue “significant legal issues” that they believe will end the case.
- Dealing with discovery, even classified discovery, isn’t a reason to refuse to schedule a trial date — moreover, the government has provided the defense with materials early, and in an exceptionally organized fashion with a road map to the evidence and how it intends to use it.
- Nor are defendants permitted to put off a trial indefinitely because they believe it might be difficult to pick an impartial jury or because of their busy work schedules or those of their lawyers.
But we did get a first look at Smith’s reply to Trump’s most ambitious (yet still lacking) defense argument. Equally important, we got a taste of how Smith intends to handle the former president’s typical strategy of provoking extended legal delays tied to specious arguments and procedural moves. Most of the defense arguments involved speculation about difficulties that might materialize down the road. These are the sorts of situations judges are well-equipped to handle when and if they materialize, and they don’t justify what Trump asked the judge to do. But his lawyers also raised a substantive argument about a defense he has suggested he would use, even before he was indicted: the Presidential Records Act. It’s never been an argument that’s made much sense.
Presidential records are any documentary materials created or received by a president or the presidential team to help with the discharge of presidential duties. Smith has charged Trump with improperly retaining classified materials, including documents that detail U.S. and foreign counties’ nuclear programs, U.S. spy satellites and the military capabilities of foreign countries. The documents were produced by the intelligence community and shared with the president in daily briefings or other meetings. This type of classified information hardly qualifies as a president’s personal records.
Trump continues to claim that he’s entitled to keep more or less anything he touched while he was president, asserting that the Presidential Records Act, which doesn’t in any way alter the rules about handling classified materials, somehow absolves him from criminal exposure. In fact, the Presidential Records Act doesn’t give a president permission to remove materials from a Sensitive Compartmented Information Facility or keep them after his term in office ends.
It’s classic Trump — repeat the lie often enough and hope people fall for it. But trying to use the Presidential Records Act to justify storing classified materials in bathrooms and ballrooms at Mar-a-Lago has always been a ridiculous exercise. And why obstruct the special counsel’s investigation if you’ve done nothing wrong? The notion that classified materials produced by the intelligence community morph into presidential records is absurd. Even if that argument made legal sense, former presidents don’t get to keep presidential records once their term in office ends. They become the property of the National Archives.
Using the Presidential Records Act to justify storing classified materials in bathrooms and ballrooms at Mar-a-Lago has always been a ridiculous exercise.
"Borderline frivolous" was the way Smith characterized the argument that the court has to dismiss the indictment because of the Presidential Records Act. He dispensed with it in three quick sentences: “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.”
Smith’s approach was no nonsense. His argument leaves scant basis for Cannon to disagree — unless she wants another unpleasant outing with the 11th Circuit Court of Appeals. Cannon has an obligation to set a trial date, and nothing Trump or his lawyers have argued here changes that.
To be clear, the August date Cannon set initially was a place holder. The defendants could not be prepared to go to trial that soon. The special counsel has proposed a realistic if aggressive schedule that gets the case to trial in December. He emphasized in his reply brief that the case can still stay on that track, even though Trump and Nauta’s lawyers dragged their feet on submitting security clearance paperworks. Trump’s lawyers have argued little of substance to explain why that schedule is unreasonable. It would see the case tried before the primary season gets underway and Trump begins to make complaints about the calendar and his need to campaign.
If Cannon refuses to set a trial date, Smith can and should ask the 11th Circuit Court of Appeals to force her to set one. An appeal by the government would be the only sensible option, and it would also present Smith with a prime opportunity to ask for a new judge. Cannon has gone outside the bounds of clear law before, when she mishandled the civil case Trump filed to kneecap DOJ’s investigation following the Mar-a-Lago search. Another ruling like that would further the case that a change of judge is necessary, because reasonable people would question Cannon’s impartiality.
In Trump’s fanciful world, top secret documents can be stored in cardboard boxes, readily accessible to any resort guest who might stumble upon them. But this is obviously not the case. By definition, top secret material, if disclosed in an unauthorized fashion, could do exceptionally grave damage to national security. Jack Smith lives in a world where that matters, a world governed by the law and the facts. While he’s undoubtedly committed to ensuring defendants receive due process, he is clearly not interested in showing Mr. Trump excessive deference or enabling his bogus theories. It’s about time.