Federal Judge Aileen Cannon has set trial for May 20, 2024 in the Mar-a-Lago documents case (United States v. Donald J. Trump) at the Fort Pierce, Fla., court house. To say that she is proceeding at a snail’s pace is to dishonor the snail.
The Sixth Amendment guarantees a criminal defendant — and, let’s not forget the public — a “speedy and public trial.” And the federal Speedy Trial Act provides for a trial within 70 days after arraignment. Trump was arraigned on June 14, and his co-defendant, Walt Nauta, was arraigned July 6, some three weeks later.
Cannon had initially set trial for Aug. 14, but no one took that date seriously. According to the government, there are a million pages of discovery to be reviewed, including at least 1,545 pages of documents with classified markings seized at the Mar-a-Lago estate, only 36 of which are mentioned in the indictment.
In addition, splitting the difference on the trial date, Cannon also laid out pre-trial deadlines, including proceedings conducted under the Classified Information Procedures Act (CIPA), which governs how classified information will be used in the case. This requires obtaining security clearances for the lawyers, fact witnesses, and experts who might be called to the stand.
The classified documents must be sanitized through an elaborate procedure provided by CIPA that requires the parties and the court to come together on dealing with classified documents that may be offered in evidence at a criminal trial. Under the statute, the court must balance the government’s interest in national security and the defendant’s due process right to be confronted with the evidence against him. All this takes time, and Cannon has already ruled that this is a “complex case.”
The new trial date will occur after the GOP primary debates and toward the end of the Republican primary calendar. Unless the date slips, it will take place more than two months after Super Tuesday, slated for March 5, 2024, when the largest number of delegates needed for the nomination will be up for grabs. The decision was later than the Dec. 11, 2023, date Special Counsel Jack Smith had requested, but much earlier than the “after the election” date sought by Trump.
Cannon could not have gotten away with accepting Trump’s date. Already rebuked twice by the 11th Circuit in the search warrant aspect of the case for her pro-Trump rulings, she presides under a cloud of apparent bias. Cannon is a Trump appointee, has served only a little more than two years on the bench, has run just four (relatively routine) criminal trials in her short tenure and is already on record that Trump as a former president should not be treated as an ordinary criminal defendant. To have accommodated Trump’s request for “after the election, would surely have raised eyebrows in the appellate court. If Trump or another Republican is elected, there will be, more likely than not, a pardon or a nullification of the indictment.
Cannon has lots of running room under the Speedy Trial Act. As is often the case in the law, there are exceptions to the rule. The court may grant a continuance if the “ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial” or because the “case is so unusual or so complex, due to … the nature of the prosecution, or the existence of novel questions of fact or law, that it is unreasonable to expect adequate preparation for pretrial proceedings or for the trial itself within the [established] time limits.”
Both sides instantly declared victory. Harvard Law professor and prominent Trump critic Laurence Tribe called the decision a “major win” for the prosecution, while the Trump campaign called Cannon’s order “a major setback” to the Justice Department’s “crusade to deny President Trump a fair legal process.” Trump had hailed Cannon as a “very highly respected judge. A very smart judge, and a very strong judge,” adding that he was “proud” to have appointed Cannon as district judge. “But she’s very smart and very strong, and loves our country. We need judges that love our country so they do the right thing,” he said.
Cannon has ample opportunity to do the “right thing” for Trump. She has the power to delay the May trial date even further as Trump’s lawyers file various motions in the matter and Cannon takes time to consider them — and the calendar draws ever closer to the November 2024 election.
Federal district judges, as Justice Antonin Scalia reflected, have enormous discretionary power, which is largely unreviewable. And delay is a powerful weapon in every defense lawyer’s bag of tricks. Who would have thought that the future of the nation could turn on a trial date?
James D. Zirin is a former federal prosecutor in the Southern District of New York.