First Commandment of federal criminal trial practice:
Thou shalt not take deliberate steps to disrupt a federal judge’s calendar.
There is almost nothing that will bring a federal prosecutor or defense attorney grief and vituperation more quickly or in greater volume than to deliberately do something that forces a federal judge to alter his or her schedule to accommodate something an attorney has done.
At the top of that list for prosecutors there is probably a new entry now — indicting the highest profile defendant possible in two different courts and then seeking a schedule in the second case that makes it impossible for the earlier-indicted case to proceed as scheduled.
What’s happening now with scheduling in the Florida and D.C. cases is that each Judge is playing a game of “chicken” with the other court’s calendar. The D.C. case, although filed second, is set to begin trial with jury selection starting March 4. Some preliminary jury matters involving a lengthy juror questionnaire will occupy much time for each side starting in early February.
In Florida, consistent with the local practice, and as done by many other federal district courts across the country — but not the District of Columbia court — an original trial date was set for August 14, 2023, which was within 70 days of Trump’s Arraignment on the original indictment as required by law.
On June 23, 2023 — before the D.C. case was filed — SCO Smith made a motion to continue the August trial date in light of the numerous factors that can justify such a move. On July 21, 2023, Judge Cannon granted that motion, and established the following key dates for various pretrial matters and the trial in the Florida case:
Sept. 7 — Initial review of classified discovery
Nov. 8 — Government disclosure of expert witnesses
Nov. 15 — Defense disclosure of expert witnesses
Nov. 21 — Government Discovery Status Memorandum
Feb. 5 — Defense reciprocal discovery to be completed
Feb. 26 — Hearing on pretrial motions
Mar. 20 — Deadline for filing trial-related motions in limine
Apr. 17 — Hearing on remaining trial-related motions
May 14 — Hearing on any remaining CIPA (classified materials) issues
May 20 — Jury selection and trial.
Again, that schedule was set in response to a motion by SCO Smith to continue the original trial date. He proposed an earlier trial date in Dec. 2023, ridiculous on its face for a case with millions of pages in discovery and issues involving classified records that may be part of the evidence introduced.
SCO Smith knew from looking at the schedule set for the Florida case that any delay in start of the trial beyond May 2024 would take the trial into the general election season. He certainly recognized he would be unlikely to convince the judge to hold the trial in the middle of the campaign. That meant the classified documents trial was very likely to not happen until after Election Day in November 2024.
So far as anyone is aware, without any notice to the Court, SCO Smith then obtained the indictment in the District of Columbia case, which was unsealed on August 1, 2023 — only 8 days after the pretrial and trial dates were set for the Florida.
Just as he had done in Florida, SCO Smith pushed for a trial date in the D.C. case. But He had two problems in that regard. First, the criminal case filed against Trump by the New York Attorney General already had a trial date set for March 24, 2024, and now the Florida federal case he filed had pretrial dates and a trial date set all through April and May, 2024. Any dates proposed by Smith for the DC case had to consider that it would be impossible to try the case late than late February because of the likelihood that it would continue over into the start date for the New York case. Second, the Florida case as set would not be over until late June or early July, making any trial in the D.C. case earlier than August 2024 for the DC case very difficult. That would again put the trial right into the middle of the party conventions and general election campaign.
So SCO Smith asked for a trial date ahead of the other two trials — notwithstanding pre-trial filing and hearing deadlines in both of those cases all through the period of January to March 2024. He found a more accommodating judge for his trial scheduling requests in D.C.
With full knowledge of the conflicts that the scheduling order would create — most particularly for another federal district court judge with an earlier filed case — on August 28 the Judge in D.C. set trial to start on March 4, 2024.
It is practically a given that the NY case will be either dismissed pretrial or the Attorney General will seek to continue the trial in that case to some unspecificied future date. As a result, there is likely no actual conflict likely to arise between the D.C. federal case an the N.Y. state case set to be going March 24.
The real “conflict” exists as a result of the fact that only 38 days after the Florida judge set her schedule, the DC judge set trial and pretrial dates that overlap with many of the dates set for pretrial matters int the Florida case. The records shows no consideration was given to the question of how Trump’s attorneys could comply with various pretrial deadlines in the Florida case while in trial in the D.C. case. Here are just some of the key dates that were set by the Judge in the DC case:
Oct. 9 — All pretrial motions were due.
Dec. 11 — Exchange of expert witness information
Dec. 18 – -Exchange of exhibit lists
Dec. 27 — All motions to suppress and trial-related motions in limine due
Jan 3 — Objections to exhibits due
Jan. 15 — Jury instructions due
Mar. 4 — Jury trial begins
To any experienced trial practitioner, these dates are not only unrealistic given the nature of the D.C. case, they are also impossible when you have to take into account that Trump will have probably at least three issues that he may be able to take to the appellate level prior to trial — during the 109 days between today and the scheduled start date for the trial. One of those issues is there now — the “gag order” imposed on him by the trial judge.
But he has also filed motions to dismiss charges on substantive legal grounds, as well as a motion to dismiss the case itself based on the grounds of Presidential immunity. It is possible that the non-immunity motions will not be subject to immediate appeal if denied, but it is a near certainty that the immunity motion will be subject to appeal — not just to the D.C. Circuit but also to SCOTUS as well.
But — and I know it took a long time to get to this “but” — all the above is merely “table setting” to understand the game that is currently underway and what the last move was.
SCO Smith can read the calendar and look at the matters that remain to be completed in the DC case. The realistic possibility that th D.C. case will actually go to trial on March 4 is almost nil. If the case was forced to trial on March 4, Trump will have a very strong “due process” claim since it will be simple for his attorneys to document that under the facts of the case they could never be prepared to competently defend him in such a case with the schedule created by the Court — particularly in light of the gamesmanship engaged in by the SCO.
More importantly, however, likely trips to the Circuit Court and/or SCOTUS will make adhering to the trial schedule pretty much impossible because neither of those courts have any particular motivation to perform their lawful duties on a timeline that allows the trial to take place as scheduled. What SCO Smith needs is a new trial date for the DC case, but a date that would still allow him to get nearly certain “guilty” verdicts from a DC jury before the November 2024 election.
What stands in his way? The May 24, 2024, trial date in the Florida case.
The great thing about that date is that both sides — SCO Smith and Trump — have set aside 8 weeks on their calendars to try that documents case in Florida. If that date was to suddenly become available, the D.C. case could be pushed back from March 4 to May 24 — 10 weeks — taking away from Trump’s claim that he has insufficient time to prepare for the March 4 trial. Moving the case back 10 weeks also provides additional time for the appeals court to determine certain issues prior to trial, and eliminate the current conflicts that exist with regard to the pretrial and trial dates between the Florida and D.C. cases.
What is a Special Counsel to do?
What if problems suddenly developed with the production and defense review of classified evidence in the Florida case? What if SCO opposed Trump’s efforts to make use of classified evidence as part of his defense? That would likely require extensive pre-trial litigation, and the outcome on those issues can be appealed to the Circuit Court prior to trial. If some classified discovery was mistakenly not produced timely, or if a couple thousand hours of video discovery was tossed into the mix late, that would help too. Or even better yet, a superseding indictment adding in a third defendant and a few new charges would also slow things down.
Sooner or later Trump’s attorneys in the Florida case would scream to the Florida judge that they can’t prepare for trial adequately, and they want to push the date out past the November 2024 election.
PERFECT — for SCO Smith. While providing some relief for the unrealistic deadlines and dates in the D.C. case, it most importantly gives him the opportunity to go to trial on the sure winner with a DC jury before the election.
And Voila, just when needed several discovery problems have arisen in the Florida case over the past 30-45 days, and counsel for all three defendants have sought revisions to the pretrial schedule in response to the problems.
On November 1 a hearing was held in the Florida case to address several of the issues being complained of by the defense. At the end of the hearing an oral order was made suspending all pretrial filing deadlines pending a written order from the Court on the pending defense motions. On November 10 the Florida judge issued a written Order suspending all pretrial filing deadlines — but denied the defense motion to continue the trial from May 20, 2024, to a later date. The Order states the Trump and the co-defendants can renew that motion at a Scheduling Conference set for …..