Trump Team Requests Delay of Classified Documents Trial Setting

As RedState reported previously, Special Counsel Jack Smith moved for a continuance of the August 14th trial setting in the prosecution of former President Donald Trump and his aide, Waltine “Walt” Nauta. Smith sought to push the trial date back to December 11th.

Initially, the Trump team’s response to the government’s motion for continuance was due July 6th, but Judge Aileen Cannon pushed the deadline to July 10th due to the postponement of Nauta’s arraignment. Attorneys for Trump and Nauta filed a joint response to the government’s motion late Monday evening.

On a side note, the New York Times has a decent write-up on the response and the current status of the case, but this line prompted a chuckle:

The written filing — submitted 30 minutes before its deadline of midnight on Tuesday — presents a significant early test for Judge Aileen M. Cannon, the Trump-appointed jurist who is overseeing the case.

Sometimes, it’s difficult to resist the dramatic framing of court deadlines and such, but as someone intimately familiar with a busy litigation practice, I can assure you: Lawyers almost always run right up to deadlines with their filings (and often request a continuance or three of said deadlines before finally getting them submitted). Nature of the beast.

In any event, the 12-page filing, which can be viewed below, sets out the defendants’ request that the court “postpone initial consideration of any rescheduled trial date until after substantive motions have been presented and adjudicated.” Essentially, the defendants are asking the court to hold off on a firm trial setting until a number of substantive issues can be resolved.

The rationale for this request is set forth in detail but largely rests on the premise that this is an extraordinary case involving extraordinary circumstances and timing.

This extraordinary case presents a serious challenge to both the fact and perception of our American democracy. The Court now presides over a prosecution advanced by the administration of a sitting President against his chief political rival, himself a leading candidate for the Presidency of the United States. Therefore, a measured consideration and timeline that allows for a careful and complete review of the procedures that led to this indictment and the unprecedented legal issues presented herein best serves the interests of the Defendants and the public. Thus, pursuant to 18 U.S.C. § 3161(h)(7)(A), based on the extraordinary nature of this action, there is most assuredly no reason for any expedited trial, and the ends of justice are best served by a continuance.

Additionally, the legal questions are significant and present issues of first impression. The intersection between the Presidential Records Act and the various criminal statutes at issue has never been addressed by any court, and in the Defendants’ view, will result in a dismissal of the indictment. The authority, vel non, of the Special Counsel to maintain this action likewise presents a potentially dispositive issue of first impression in this Court. Additional significant matters include the classification status of the documents and their purported impact on national security interests, the propriety of utilizing any “secret” evidence in a case of this nature, and the potential inability to select an impartial jury during a national Presidential election. Moreover, the extensive and voluminous discovery, coupled with the challenges presented by the purportedly classified material that has yet to be produced, will require significant time for review and assimilation. All these questions further warrant a continuance pursuant to 18 U.S.C. § 3161(h)(7)(B)(ii). The Government’s apparent view that these unprecedented issues should be adjudicated on an expedited basis is simply untenable and ignores the magnitude of this case.

Additionally, the request notes the voluminous nature of the document production thus far and anticipated future discovery disclosures.

The Government anticipates producing discovery in stages due to the sheer volume of documents collected and because of procedural mechanisms necessary to protect against the unlawful production of classified information. The Government produced its “first production of unclassified discovery” on June 21, 2023.1 That initial production was substantial and voluminous. Therein, the Government produced more than 428,300 records (in excess of 833,450 pages) consisting of approximately 122,650 emails (including attachments) and 305,670 documents gathered from over ninety (90) separate custodians. The initial production also included some 57 terabytes of compressed raw CCTV footage (so far there is approximately nine months of CCTV footage, but the final number is not yet certain).

As we’ve reported, a pre-trial conference in the matter was set for this Friday, July 14th, which was to include a hearing on how the classified material in the case is to be handled.

Judge Cannon granted the government’s Motion for a Pre-Trial Conference “to consider matters relating to classified information that may arise in connection with the prosecution,” as well as to appoint a Classified Information Security Officer (“CISO”) “to assist the Court, Court personnel, and the defense in the handling of any motions and orders” pursuant to the Classified Information Procedures Act (“CIPA”). (The defendants did not oppose those motions.) The pre-trial conference is set for July 14, 2023.

However, that has now been continued to July 18th.

Though it is possible Judge Cannon will rule on the motion(s) for continuance prior to then, in all likelihood, she’ll hold off on that ruling until the pre-trial conference takes place. What does appear clear is that the August 14th trial setting is likely to be postponed. RedState will, of course, continue to provide updates as they become available.

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