The doc days of summer
Today was supposed to be the first pre-trial hearing in Donald Trump and Walt Nauta's combined 38-count indictment for mishandling classified information, conspiracy, obstruction and more. That's now set to happen on Tuesday next week. It's a small delay, but the first tiny example of how Trump could try to wriggle out from under the mountain of evidence against him.
Whether it's Iran attack plans or nuclear secrets, bathrooms or ballrooms, the Classified Information Procedures Act (CIPA) governs how courts handle state secrets when those secrets are evidence. And now we're all in a crash course to understand how CIPA could help Trump's lawyers, or even a sympathetic judge, to run out the clock on his charges.
When submersibles disappear or arcane statutes govern the future of the country, we need experts! I called up Brian Greer, who was an attorney in the CIA's Office of General Counsel from 2010 to 2018. While there he investigated and prosecuted cases involving classified docs, CIPA, and the Espionage Act. (By the way, you can hear Brian on the "Jack" podcast, where he regularly joins to talk about the behind-the-scenes realities of the Mar-a-Lago case.)
How important is it for Donald Trump to delay this case as much as possible?
It's probably his most important strategy that's likely to succeed.. If he delays it past the election, and gets reelected, the case is over. He doesn't even have to worry about pardoning himself. His Attorney General will dismiss the case.
The first pre-trial hearing was supposed to be today. It's now scheduled for Tuesday. Has this delay dynamic already started?
I focus more on DOJ's proposed trial schedule. They proposed starting to turn over classified evidence to Trump's team, called classified discovery, on July 10. That we're already passed. Even if Judge (Aileen) Cannon adopts a schedule on Tuesday, there are still other things that have to happen before classified discovery can even start. You have to get the security clearances for the lawyers approved, which doesn't appear to have happened yet. You have to have all the logistics worked out for where the documents are going to be stored. For where the lawyers are going to go to view them.
Then most importantly, you have to have a protective order specifically governing classified information under CIPA section 3, that DOJ hasn't even proposed yet. They are certainly negotiating it behind the scenes right now with Trump and Walt Nauta's team. I'm skeptical that they would come to a mutual agreement on it, which means it would have to be litigated. That could take a few weeks to a month. So just on the start of the classified discovery, we're talking about probably a month delay, is my guess. Unless for some reason they come to an agreement on the protective order.
There's a lot of concern about Judge Cannon, and whether she's in the tank for Trump. Given all the complex procedure, when will we know if she's trying to tilt things his way?
First, she could say, we're going to start the discovery process, and we're going to delay the scheduling of the trial until we figure out the scope of discovery. That's a probable outcome, I think, and that's not that unreasonable actually. I don't think she's going to say, "I'm going to schedule the trial for December 2024." But she could say that we need to hold off scheduling the trial until we know more about the case through discovery.
When we start to get into the classified discovery disputes, that's going to be a big part of it. But those are going to be fought out behind the scenes without the public really knowing what's going on. It's in that area where there's a lot of opportunity for delay, and for the judge to facilitate that delay.
Trump's team before long will probably file some motions to dismiss the indictment all together. They may make their Presidential Records Act argument, they may make malicious prosecution arguments. They'll make their argument about the Special Counsel's appointment being unconstitutional. Those should all normally be easily rejected by the judge. But if she entertains those, obviously we'll know she's in the tank for Trump..
Judge Cannon has very little experience with criminal trials and zero experience with CIPA cases. Can attorneys take advantage of an inexperienced judge in a very complex case like this?
They can for sure. There are a bunch of novelties to cases like this that they just aren't going to understand. It happened in Guantanamo military commission proceedings, where we've had a series of judges there who have no experience with cases involving classified information, and the defense counsel has taken advantage of that. I'm not defending everything the government's done, but that's a great example of defense lawyers tying up inexperienced judges over how classified information should be handled.
The first substantive part will involve the government going to her ex parte, meaning without Trump's lawyers present, to discuss their discovery strategy and what they're going to produce and getting her approval to apply certain CIPA tools for things like redacting documents, summarizing them, or making substitutions. That's all going to be done without Trump's lawyers present. That may itself be odd to her and something she doesn't react well to. The next phase would be Trump's lawyers giving notice of the classified information they intend to use at trial. Trump's lawyers will raise a stink about that, saying it's unfair that they have to do that, but that's in the statute. But she might find that unusual too. So there will be opportunities at every step for them to exploit her inexperience. On the flip side, there are also opportunities for the government to educate her at every step along the way.
So given what you know, what are the chances in your estimation of a trial here before the election?
I think the earliest possible date is June 2024. That has enough time to build in all the pretrial classified proceedings, if they go relatively smoothly, and if the government devotes a lot of resources to getting its piece done on time. It's also after the GOP primary, and it's after Trump's May 2024 trial in New York. It's before the general election really gets ramped up.
But if Judge Cannon isn't interested in that, it's not gonna happen. Or if she makes adverse rulings that DOJ has to appeal, that delays things by a couple months. She's not going to hold a trial in September before the election. So if they thread the needle, it looks like June.
I kind of love that the outside world suddenly has this desperate need for your area of niche expertise. It's like how we needed the world's experts in deep-sea submersibles, and they had a moment. How's it been having the world crashing into your little corner of the courtroom?
It's a little surreal for sure. I'd love to go back to my 2012 self and say, hey, this statute that we and a handful of DOJ lawyers are experts in? Well, now a former president of the United States is gonna be charged with violating it, and by the way, that former president is Donald Trump. And suddenly the whole world is going to be talking about the Espionage Act and CIPA. Even within the government and national security world, they're considered obscure statutes.
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