The “Fight” Over A Trial Date in the Trump Documents Case Is Really No Fight At All

by ShipWreckedCrew:

This story is almost comical to me, and I suspect it’s comical to many other experienced federal criminal trial practitioners.

The media and left-wing legal pundits playing for more social media attention seem to think the issue of when a trial date will be set is an early test of how Judge Cannon will conduct herself while presiding over the case.

But there is simply no “there there” when it comes to the dispute that exists between the Smith SCO’s proposed trial schedule seeking a December trial date, and the Trump/Nauta team’s proposal tha not trial date be set prior to the November 2024 Presidential election.

This subject was put on the agenda for a hearing in the case on Tuesday July 18, but the reporting in the aftermath of the hearing said no decision was reached in court, and Judge Cannon indicated that she would put out a written scheduling order. The reports were that she seemed skeptical about the likelihood of having a December trial, but was not willing to accept the defense proposal to put off any trial until after the election.

The idea that observers and pundits were going to be able to discern some deep understanding from reading the tea leaves coming out of this hearing was giggle-inducing to begin with. It makes no different that Donald Trump is the defendant in this case. An early hearing to discuss a mundane issue like trial setting and discovery details happens in EVERY federal criminal case. I’ve been in a thousand or more such hearings, and the same subjects repeat themselves case after case after case.

And those are the issues that were always going to dominate the discussion of setting a trial date in this case. There are basic legal and practical considerations when it comes to setting an initial trial date, and anyone with any decent amount of experience in the practice knows that you only write down these initial dates in pencil because the almost always change.

Some of the reporting that was particularly amusing included references to how much information the Special Counsel had included in the motion to set a trial date, and how it explained how comprehensive its disclosure had been to the defense already. Further, if the pundits argue that if Defense attorneys would only work a little faster on pesky little matters like getting their security clearances in place, everyone could proceed immediately to trial because the SCO has given the defense pretty much everything they need — including having already segregated about 4500 pages of discovery as being the “key” materials among the more than 800,000 pages of discovery that has been made available.

Because that work has been done for them there is no reason for meaningless delays, the only purpose of which would clearly be to drag this out so that Trump can try to win the election and pardon himself. So the defense should just read the “important stuff” that has been set aside for them and they will realize exactly why it is that Trump is guilty, we can move straight to trial so the jury can read the same information, return verdicts of guilty and Donald Trump will no longer be able to be President.

Or at least that’s the theory behind the plan.

I’m always amused by the Government’s suggestion that “We’ve highlighted and separated all the most important stuff for you.”

Most important to who (whom?)?

This is the way those conversations with prosecutors play out in my head:

“How about we agree that you read the discovery and decide what is important to the Government, and I’ll read the discovery and decide what is important to the my client. You have 800,000 pages of discovery? Great, I’ll get back to you when I’m done.”

“By the way, I have four trials set between now and next July. I expect it will take me a minimum of 8-10 weeks to properly prepare for this trial once those other trials are over, so I don’t expect to have the necessary time to properly prepare this case for a trial date any time before December 2024. I’ve explained this to my client and he understands. He still wants me to remain as his counsel of choice which is his CONSTITUTIONAL right under the Sixth Amendment. Since the delay is not for any prohibited purpose, you’ll certainly agree that my client’s CONSTITUTIONAL right to his counsel of choice prevails over any statutory claim you have to a “speedy trial” on behalf of the people.”

The Sixth Amendment does not mention a CONSTITUTIONAL right to a speedy trial for the Government — you understand that, right?”

Let’s unpack some of the practical and legal details that are reflected in this very typical exchange, and then I’ll turn my attention back to the matter before Judge Cannon yesterday.

First, as noted, there are two sources for the claim that a right exists to a “Speedy Trial” — one is the Sixth Amendment and the other is the Speedy Trial Act passed by Congress.

As noted above, the Sixth Amendment only applies to defendants. There is no CONSTITUTIONAL right belonging to the Government regarding a speedy trial.

The second source is a statute passed by Congress — the Speedy Trial Act. This is a mostly mechanical application of timing rules intended to keep federal cases on track towards a disposition with some uniformity in the application of its timing provisions. Because federal district judges act with almost total autonomy in terms of managing their docket — with lifetime appointments — in the days before the Speedy Trial Act some judges would force every case to trial inside a year while other judges would allow nearly identical cases to linger on for 4 or 5 years without ever coming to trial. The purpose of the Speedy Trial Act was to establish a process for all judges to follow using one set of rules to make it happen.

The basics are that the Act requires a trial date to be set within 70 calendar days of a defendant’s initial appearance and entry of a plea after an indictment is filed. That creates what is called the “Speedy Trial Clock.” Every day that runs on that 70 day window is gone forever, and the time within which a case must be brought to trial gets shorter.

But the Act has a series of subparagraphs that set for numerous circumstances where “time is excluded” from the running of the Clock — meaning that while any of those circumstances are present, no days are expiring and the Clock is “frozen.” At the end of every federal court hearing there is usually an exchange between the Judge and lawyers about how to treat the time between that hearing and the next scheduled hearing for purposes of the Speedy Trial Act. These exchanges usually happen in legalese “shorthand” because the participants know the purpose and the “magic words” that must be spoken in order to properly “exclude time” and not lose any of the 70 days. Because of these exchanges it is NEVER the case that a federal trial starts in the 70 day window — 2 months and 10 days (don’t ask me why) — following the entry of a not guilty plea. “Excluding time” is the process by which January 6 cases sill have not made it to trial more than 30 months after some of the arrests. That’s 900+ days.

So, if there is a hearing and August 1, and at the end of the hearing there is another hearing set for October 1, the Judge will ask the lawyers for each side’s position on the Speedy Trial Clock. Both sides typically say “In order to allow counsel additional time to review discovery and prepare for trial, my client agreed to “exclude time” from now until October 1 for purposes of the Speedy Trial Act.” If the Judge finds good cause based on the agreement of the parties, he then finds “in the interests of justice” that time is excluded, and none of the 60 days between the two hearings will count against the 70 Day Clock.

Let’s go back now to the Smith SCO’s motion to set a December trial date.

What the SCO is really asking for is to reset the trial date because Judge Cannon has already set an August trial date for the case. The reason she did so was to meet the requirement — as some Judges (not all) interpret the Act — that a trial date be set within 70 calendar days right at the very start. The August date she sat is within the 70 day window as required.

Now it is up to the parties to determine if they can be prepared to go to trial on the August trial date as scheduled by her, and if not, when a more appropriate trial date might be. Normally the two sides would discuss this subject. I’m confident the SCO attorneys and the defense attorneys exchanged their views and found they had no common ground. That led the Smith SCO to file a motion to amend the scheduling order by moving the trial date to December as they prefer. The Defense opposed that motion and advised the Court that they want to wait until after the Nov. 2024 election for a trial in the case.

The reports from yesterday’s hearing are that Judge Cannon doubted that a December trial date was likely, but was unwilling to accept the position of the defense to just put the whole matter off for 18+ months until after the election. As I understand her comments, she took the matter under submission and will issue a written order.

Very typical, and in no way suggests anything about her intentions in presiding over the case.

I have a suspicion that Judge Cannon is in the camp of federal judges who believe the Speedy Trial Act requires criminal cases to always have trial date. That doesn’t mean the trial is going to start on the date set because the date can always be changed. But there is a line of judicial thinking that a case cannot simply be “pending” on the Court’s docket without a trial date attached to it. I’ve practiced in front of many federal judges who ran their dockets by that rule, and my calendar was peppered by trial dates out into the future for every filed case — and those trial dates were continually changed by the parties.

Note: It was of interest to me when I started doing Jan 6 cases in the DC federal court that the Judges there do not follow this practice. They have cases move from “Status Conference” to “Status Conference”, excluding time in between, until both sides say they are ready to set a trial date. Once that happens, the Judges are very reluctant to allow trial dates to be moved without a very good reason. This is a more “traditional” way of scheduling cases, but it seems to have given way to the more modern practice which is to set a trial date at the start and then work towards that date, moving it back as necessary.

There are also some practical realities beyond simply a desire to delay the trial that made the December trial date sought by the prosecution unlikely.

While the members of the Smith SCO might have only one trial they are concerned with scheduling, the same is not true of either the Court or the defense attorneys. The Court has dozens of other cases on the docket and those cases have trial dates. When setting a new trial date for a new case, the Court has to look for open dates on its own calendar, or for dates where the Court has some level of confidence that another case set for the same date is not likely to go to trial as scheduled. The Judge and her staff have a very good “feel” for the status of all their cases, and often know well ahead of time that a particular case is going to end up in a guilty plea (criminal case) or a settlement (civil case), and that a trial date reserved for such a case can be “double set” without much fear of an actual conflict resulting.

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