By ERIC TUCKER (Associated Press)
WASHINGTON (AP) — The case against Donald Trump seemed relatively straightforward in August 2022 when FBI agents searched his Mar-a-Lago estate, with authorities citing evidence that the former president hoarded enough classified documents to fill dozens of boxes and obstructed the government’s efforts to retrieve them.
But nine months after he was indicted, there are mounting doubts that the case can reach trial this year.
The Trump-appointed judge in the case has yet to set a firm trial date despite holding two hours-long hearings with lawyers this month. Multiple motions to dismiss the case are still pending, disputes over classified evidence have spanned months and a bitterly contested defense request to disclose the names of government witnesses remains unresolved. Complicating matters further is a recent order suggesting that the judge, Aileen Cannon, is still entertaining a Trump team claim about his rightful possession of the documents that she had appeared openly skeptical of days earlier.
“This does seem to be moving more slowly and less sequentially than other cases that I have seen” concerning classified information, said David Aaron, a former Justice Department national security prosecutor.
To a certain extent, the delays are the product of a broader Trump team strategy to postpone the four criminal cases confronting the presumptive Republican nominee in this year’s presidential race. But the case in Florida is unique because of the startlingly few substantive decisions that have been made to move closer to a trial. That raises the prospect that a resolution in the case may be unlikely before this year’s presidential election. If he were to win the White House, Trump could appoint an attorney general who would dismiss the federal charges against him in Florida and other jurisdictions.
Prosecutors on special counsel Jack Smith’s team have strenuously fought to press the case forward. Though they’ve taken care not to mention the upcoming election, they’ve repeatedly cited a public interest in getting the case resolved quickly and have pointed to what they say is overwhelming evidence — including surveillance video, a defense lawyer’s notes and testimony from close associates — establishing Trump’s guilt beyond a reasonable doubt.
“This case should be over already,” said Jeffrey Swartz, a professor at Cooley Law School and former judge in Florida. “There was nothing in this case that complex.”
That’s what distinguishes the classified documents case from the other — more legally intricate — criminal cases against Trump, which revolve around everything from allegations of hush money paid to a porn actress to complex racketeering charges and his role in seeking to overturn the 2020 election.
But defense lawyers see it differently, and Cannon — a former federal prosecutor who was appointed to the bench in 2020 and has limited trial experience as a judge — has proved receptive to some of their arguments since even before the case was filed last June.
The judge became famous after the FBI searched Mar-a-Lago and then Trump sued to get back the seized documents. In response, she appointed a neutral person to look at all the records. She chose someone independent to go through all the documents.However, a federal appeals panel unanimously overturned this decision, saying Cannon had gone too far.
According to John Fishwick, Jr., a former U.S. attorney, the judge started acting slowly and issuing very few public, written decisions after she was reversed by the 11th Circuit.
Cannon initially set the trial for May 20, 2024, but later hinted at reconsidering the date during a hearing on March 1. Although the hearing took place as planned, no new date was set, even though both sides suggested the trial could start this summer.
Defense lawyers have filed several motions to dismiss the case, claiming that the prosecution is vindictive and that Smith’s appointment as special counsel was illegal. The defense lawyers think that Smith's appointment as special counsel was not legal. Cannon listened to hours of arguments on two of the dismissal motions.
This month, Cannon listened to many arguments on two of the dismissal motions. She heard many arguments on two of the dismissal motions regarding the Presidential Records Act and the constitutionality of the Espionage Act. It appeared that Cannon did not fully believe the defense arguments and, after the hearing, rejected the vagueness argument while allowing Trump to bring it up again later.
The judge seemed doubtful about the defense assertions and, after the hearing, issued a short two-page order rejecting the vagueness argument but allowing Trump to raise it again later.
She has not yet made a decision on the Presidential Records Act motion, but she told lawyers for both sides to give their opinions on proposed jury instructions.
She asked both sides to give their opinions on proposed jury instructions that seemed to favor Trump. This order echoed arguments Trump’s lawyers have been making for months.
Aaron believes it's too early to talk about jury instructions when significant legal questions need to be resolved, though he thinks the jury instructions order could help to address these issues.
Apart from the pending motions to dismiss, Cannon has not yet ruled on a defense motion to force prosecutors to give them a lot of information that they believe would show that President Joe Biden’s administration had misused the criminal justice system in bringing the Trump case.
That statement aligns with Trump and his supporters' claims that he's being unfairly targeted by the Biden Justice Department. Trump has argued that he was charged while Biden, who was also investigated for keeping classified information, was not. As a result, Smith's team laid out the many differences in the investigations.
A more contentious argument revolves around a defense request to publicly file a motion that would reveal potential prosecution witnesses. Cannon initially agreed to the filing but paused her order after prosecutors argued that this could endanger the witnesses' safety.
A law professor at Case Western Reserve University, Kevin McMunigal, suggested that the judge might simply be hesitant to make a mistake, but delaying the decision only postpones it. Eventually, she will need to make a decision on this matter.
