Legal expert: DOJ may give opening for Judge Aileen Cannon to give in to Trump’s delay demand

Special Counsel Jack Smith in a court filing Monday urged U.S. District Judge Aileen Cannon, who is overseeing Donald Trump’s classified documents case, to reject the former president’s attempts to delay his trial until after the 2024 election.

“The defendants provide no credible justification to postpone a trial that is still seven months away,” Smith’s team wrote in response to a court filing by Trump’s attorneys seeking the postponement. “They are fully informed about the charges and the theory of the Government’s case from a highly detailed superseding indictment and comprehensive, organized unclassified and classified discovery.”

In their filing last week, Trump’s team argued that the delay was necessary due to scheduling conflicts and ongoing issues over classified evidence.

But Smith dismissed their claims of untimely access to the prosecutors’ evidence as “misrepresented and overstated,” saying that the “vast majority” of classified material is accessible to Trump and his two co-defendants, aide Walt Nauta and Mar-a-Lago property manager Carlos De Oliveira.

“The defendants have repeatedly distorted the comprehensive, organized, and timely unclassified discovery that the Government has produced, in service of an attack on the promptness and thoroughness of the productions and an allegation that the Government is in ‘ongoing non-compliance,'” prosecutors wrote. “The facts prove otherwise.”

The special counsel urged the judge to reject their request to delay the trial until after the November 2024 presidential election and proceed with the originally scheduled start date of May 2024 for the trial.

“Smith is going to do everything he can to keep the May trial date, and Trump is going to continue to try to delay,” former federal prosecutor Neama Rahmani told Salon. “If the DOJ complies with its discovery obligations in a timely manner, there should be no reason to continue the trial. If they don’t, or if the CIPA procedural hurdles take longer than anticipated, the defense will have a good argument to push the trial date back.”

The former president has pleaded not guilty to all counts stemming from his alleged mishandling of classified documents after leaving the White House and repeatedly obstructing government efforts to recover them. Trump was charged with 40 federal counts, including charges of retaining classified information, obstructing justice and making false statements.

In their response to Trump’s request, lawyers from the Justice Department pointed out that they have already handed over more than 1.1 million pages of unclassified documents and all surveillance footage from Mar-a-Lago acquired before May. They mentioned that the most recent batch of information was delivered on Friday.

The filing from prosecutors also addresses “sensitive measures documents,” which include most highly confidential documents that Trump is alleged to have improperly retained upon leaving the White House. The document also outlines the measures that have been taken to allow defense attorneys to examine these records.

Trump’s team in their filing argued that they only had “access to a small, temporary facility in Miami” to view the highly classified records and that one member of their legal team, Chris Kise, has also not yet been fully cleared to review certain classified materials.

But prosecutors in Smith’s office refuted their claims and asserted that Kise received an interim security clearance in July and was authorized to review “about 2,100 pages of classified discovery the moment they were produced on September 13 – the same day the protective orders issued.”

The Special Counsel’s Office also mentioned that they had made arrangements for defense attorneys to review records in Washington, D.C. as well as Miramar, Florida and said that they were “not aware of any request by Trump to personally appear in Miramar to inspect any documents—a request upon which the necessary arrangements to do so can and will be made.”

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Trump is currently the frontrunner for the Republican presidential nomination and has also been charged in state indictments of falsifying business records in New York relating to his alleged 2016 hush-money payment to adult film star Stormy Daniels and for interfering with the results of the 2020 election in Georgia.

“It ultimately comes down to Judge Cannon, who has thus far appeared receptive to Trump’s arguments,” Rahmani said. “When it comes to scheduling, she has a lot of discretion in managing her trial calendar. Appellate courts rarely get involved unless there is a speedy trial or other fundamental right affected by the timing.”