No — There Will Not Be A May 2024 Trial In The Trump Documents Case

by ShipWreckedCrew

I get the impression that much of the online legal punditry regarding the trial schedule entered in the Trump documents case is coming from attorneys whose primary — maybe only — experience is in federal civil litigation where the “Scheduling Order” rules the day and deviations are allowed only upon a finding of “good cause.’“ A trial date, as well as a host of pretrial filing deadlines, are established right at the very beginning. The trial date is set off as far as the parties think the need, and then they are — for the most part — stuck with that date.

That is done pursuant to Rule 16 of the Federal Rules of CIVIL Procedure.

There is no equivalent rule in the Federal Rules of CRIMINAL Procedure.

Yes Virginia, there are different rules in civil and criminal cases.

While it is not uncommon for federal judges to impose a scheduling order such as the one entered by Judge Cannon last week, because criminal cases are very unpredictable at the start, an early scheduling order is really just a guide — its the schedule that the case will follow until there is a reason to not follow the schedule any longer. At that point the schedule will be changed to accommodate the reason why the original no longer can be followed.

Ya fallow?

At this point in the case, the defense really has no idea what the Government’s evidence is or how the Government will present its case at trial.

Yes, there is an indictment that provides a road map.

Yes, the Smith SCO has provided a million or more pages of discovery, and has a large volume of “classified” discovery still to come.

Yes, the Smith SCO has provided the grand jury transcript of testimony of approximately 75 people.

So what? The fact that the Government has produced that material is irrelevant to the more important issue of how long it will take the defense to review, digest, and dissect the material. Only at that point will the defense begin to consider the nature of any factual defenses it might have available, and begin to construct the defense case.

Such a factual defense is completely different from the nature of the legal defenses that might be available to prevent a trial altogether.

The Smith SCO has had dozens of agents and maybe as many as 10 prosecutors handling various parts of this investigation going back many months. No Court is going to create an artificial limit on the amount of time a much smaller group of defense lawyers is going to be allowed to sift through what the Government has produced. If the defense needs more time than a May trial date would provide, then the Judge is going to give them more time. This happens regularly across the country in criminal cases every single day.

The Sixth Amendment reads:

 
Note that no where in the Sixth Amendment are there any “rights” of the Government to anything in a “criminal prosecution.” And the last right has been interpreted by the Supreme Court to mean “effective” assistance of counsel. That mean an attorney who is properly prepared to present a defense on behalf of the accused.

Federal judges, regardless of the politics of the President who appointed them, are not in the habit of jamming cases to trial in the face of over claims made by defense attorneys that they have not had sufficient time to prepare.

At this point in the case, Judge Cannon has no idea how much time it will take the defense attorneys to prepare to defend this case. That’s why her first scheduling order is simply a “prediction” of when the case might be ready for trial. She was pretty confident in her comments during last week’s hearing that the five months between now and December proposed by the Government would not be enough time.

The defense attorneys did not give her an alternative — asking instead that the case be held in abeyance for the next 16 months until after the election. I never thought there was much chance of her doing that — I think she adheres to the more modern view of federal judges that cases need trial dates, even if they are just placeholders that are subject to change in the future.

I did hear a couple of amusing tidbits that came out of the hearing in Florida last week.

Counsel for Mr. Nauta, Stanley Woodward, opened his comments by saying “I just want. the record to be clear that my client is not running for President in November 2024” so the date of the election is irrelevant to him in terms of setting a trial date. His only interest is that he have enough time to adequately prepare his defense.

Second, Mr. Woodward noted that the Government is objecting to having the documents case declared “complex” under the Speedy Trial Act, which would relax some of the timing requirements that currently apply to the case. Woodward commented that it was odd the DOJ would take that position in documents case given that the DOJ had argued in a January 6 case he had that the case was “complex,” considering that the Jan 6 case involved less than one hour of video evidence, and in the documents case the Government has advised the defense that there is more than 1000 hours of video evidence for them to review.

There is simply no question that the document case qualifies as “complex” under the definition of that term in the Speedy Trial Act. It is “bad faith” for the Government to take the position to the contrary so I’m not surprised that Judge Cannon is already looking at Smith SCO representations with a “jaundiced eye.”

But the simplest reason why this schedule will not hold is that it does not take into account the pre-existing work calendars of the defense attorneys involved in the case. The Smith SCO attorneys have only one case to worry about in terms of scheduling. The attorneys representing Pres. Trump and Nauta have other clients and other cases already on their calendars, and their work on the documents case has to be integrated with work being done in those other cases.

The Sixth Amendment guarantees — almost completely — the right to counsel of one’s choice. That right is not conditioned on the chosen counsel having a lot of free time to devote immediately. Pres. Trump’s attorney represents him on the tax case filed in New York State court. That has a trial date in March 2024. It’s easy to say that because the two cases don’t overlap, the New York case should not be a reason to not have a May 2024 trial in the documents case.

But Trump’s attorney will almost certainly point out that it is impossible to do pretrial preparation — in March and April — for a May trial if he’s in trial in the New York tax case in March. The same applies to the pretrial motions work that will likely be part of both cases leading up to trial.

The same problem exists for Nauta’s client. He has a busy trial schedule between now and next spring as well. Judge Cannon — herself a former AUSA and well familiar with calendar conflicts of busy defense attorneys — is not going to force Woodward to shuffle or push aside other client matters in order to make the documents case go to trial in May 2024.

But most of these potential complications in the future were not before her last week when she drafted her Order. That’s why I say the the Order will remain as it is until there is a reason to change it, then it will be changed.

The Smith SCO can climb to the top of the tallest building in Miami and shout their outrage as loud as they can — that’s not going to change the fact that the Sixth Amendment protects a defendant from being stampeded to trial by an overzealous prosecutor.

There were a couple other episodes of note the last few days that are worth mentioning.

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