by Julie Kelly
At one point during a contentious hearing in her Florida courtroom on Wednesday afternoon, U.S. District Court Judge Aileen Cannon confronted the Department of Justice about its concurrent federal indictments against Donald Trump.
Cannon pressed Jay Bratt, the chief prosecutor on Special Counsel Jack Smith’s classified documents case, to name another instance when the government brought charges against the same defendant on two different matters within a few months of each other. (Smith indicted the former president last June in the southern district of Florida for unlawfully keeping national defense information at Mar-a-Lago and obstruction of justice. Seven weeks later, Smith charged Trump in the District of Columbia with four counts related to the events of January 6.)
“Do you know of any other case where the same defendant is facing indictment in multiple jurisdictions and DOJ has taken the position that there should be no consideration to the fact that, of course, the defendant needs to be able to assist in his defense?” Cannon asked Bratt.
He had no answer.
Cannon, appointed by Trump in 2020, then scolded Bratt for failing to acknowledge “an unavoidable reality that the schedules collide” with less than three months in between for the defendant to prepare. “So I’m not quite seeing, in your position, a level of understanding to these realities,” Cannon said.
The dispute centered on Smith’s claim that the trial set to begin in the nation’s capital on March 4 would last four to six weeks and therefore not interfere with the start of the May 20 trial in Florida. But Trump’s defense attorneys predict the D.C. trial will stretch beyond two months, a more realistic timetable considering jury selection alone in a heavily Democratic city that already has hosted roughly 70 jury trials for January 6 defendants could last several days.
Pre-trial schedules present numerous conflicts for Trump and his lawyers as they navigate travel between jurisdictions—not to mention Trump’s legal battles in other venues. As if to demonstrate the strain on Team Trump, one defense attorney participated in the Florida hearing by phone because he was in a Manhattan courthouse defending the former president in the lawsuit brought by New York Attorney General Leticia James, a Democrat.
Challenges in the classified documents case are exacerbated by strict rules that govern access to evidence the government designates as “classified.” Defense attorneys representing Trump and his two co-defendants first had to acquire security clearances and now must travel to Miami in order to review the discovery at a secure location, a facility the government finally opened on October 18 after an extensive delay.
“I’m having a hard time seeing how realistically this work can be accomplished in this compressed time period,” Cannon told Bratt, who dismissed the concern by stating Trump’s only motive is to “delay [the trials] past the November election.”
Apparently, Cannon was unpersuaded. On Friday morning, she announced a stay, or suspension, of all pre-trial deadlines as she prepares a formal order to explain her thinking and very likely issue a new trial date.
Jack Smith, Not Cannon, Caused the Delay
While the corporate media and reliable DOJ lapdogs such as Andrew Weissmann and Barbara McQuade will fault Cannon for the inevitable postponement, Jack Smith only has himself to blame. It is Smith, not Cannon, who is trying to squeeze in the DOJ’s history-making and complex prosecutions of Joe Biden’s presumptive Republican rival before Election Day. After all, Smith was appointed special counsel by Biden’s handpicked attorney general and served in the Obama-Biden DOJ for years. He understands his marching orders.
For starters, Smith asked Judge Tanya S. Chutkan for an expedited trial calendar in the January 6 case, a request to which she obliged. (While most January 6 cases go to trial well over a year after an arrest is made, Chutkan, appointed by Obama, set a brief seven-month period between indictment and trial for Trump.)
Smith also sought what Cannon described as an “atypically accelerated” schedule in requesting a December 2023 trial date, just four months post-indictment. “[The] fact that they continue to contend that it is appropriate and not a violation of President Trump’s due process rights to push forward with back-to-back multi-month trials in different districts with wholly different facts—over a defendant’s objection—reveals a central truth about these cases. The Special Counsel’s Office is engaged in a reckless effort to try to obtain a conviction of President Trump prior to the 2024 Election, no matter the cost,” Trump’s counsel wrote in an October motion.
Juggling competing trial deadlines while running for president isn’t Trump’s only challenge; extensive litigation on a variety of questions—not the least of which is whether a former president can be criminally prosecuted for his conduct in office or keep records created during his own administration after he leaves—is expected in both federal cases.
The games already have begun. For example, Trump this week filed a motion at the appellate court in D.C. seeking an emergency stay (or hold) on Chutkan’s broad gag order. If the appellate court, stacked with Obama appointees, ultimately denies the request, Trump’s team signaled they are prepared to seek immediate relief at the Supreme Court. (Late Friday, a three-judge panel issued a temporary hold and expedited Trump’s appeal on the matter.)
Defense motions to dismiss the January 6 indictment based on selective prosecution and overall unconstitutionality now sit on Chutkan’s desk—requests she presumably will deny, prompting another wave of appeals. One can only imagine the coming fight over jury selection, which will commence on February 9 when potential jurors in D.C. are asked to complete questionnaires about their knowledge of the case.
In addition to the logical difficulties in viewing classified evidence in the documents case—which also involve tight restrictions under the Classified Information Procedures Act, or CIPA, and numerous hearings—the amount of discovery in the matter is “exceedingly voluminous,” Cannon wrote in July. She did not exaggerate.
DOJ so far has turned over at least 1.3 million pages of unclassified and 5,500 pages of classified records, far more than Smith’s office initially claimed. Further, roughly 60 terabytes of video footage recorded by security cameras at Mar-a-Lago must be reviewed by defense attorneys to track the movement of dozens of boxes, the basis of Smith’s obstruction charges. Both sides debated on Wednesday whether the amount of footage represented the equivalent of five years (Smith) or ten years (Trump) since the archive includes video captured by multiple cameras stationed throughout the property over the course of several months.
Team Trump also accuses Smith’s team of violating discovery deadlines, an allegation Bratt seemed to acknowledge when he admitted to the judge that the government made a discovery production as late as last week.
An Uncommon Courage
But Cannon, unlike her cohorts in Washington, is fulfilling her duty to protect the rights of defendants, including Trump, against excessive government overreach. She landed on the Left’s naughty list last year when she agreed to appoint a third party to filter more than 13,000 pieces of evidence seized by the FBI during the August 2022 raid of Mar-a-Lago. Citing unlawful leaks to the media and the mishandling of privileged material in the investigation’s early stages, Cannon consented to Trump’s request for a “special master.” Her order was overturned on appeal a few months later to much ridicule from regime apologists.