Former president Donald Trump’s lawyers invoked the 2024 presidential campaign in court papers late Monday, arguing that for a host of legal and political reasons, Trump’s classified documents trial should be pushed far past the December time frame proposed by the Justice Department.
The lawyers asked U.S. District Judge Aileen M. Cannon not to set a date for the trial for the time being, while the two sides work through pretrial motions and hearings. They suggested that to ensure an impartial jury, the trial should not be held until after the presidential election.
Trump, the first former president ever charged with a crime, is the front-runner in the Republican presidential field. He and a longtime aide, Waltine “Walt” Nauta, were charged last month in a 38-count indictment, setting the stage for a high-profile, high-stakes trial that is likely to test not just Trump’s popularity within his party and the country but also prosecutors’ ability to seek and win a conviction of a former president.
The first pretrial meeting in the case is scheduled for July 18. At that hearing, lawyers for Trump and the federal government may spar further about the schedule and the consequences of holding a criminal trial of a presidential candidate in the midst of a political campaign.
Technically, Cannon has already set a trial date in August. But that is a placeholder, as are most trial dates set shortly after an indictment. Federal prosecutors have proposed holding the trial in December, which would be before the start of the 2024 nominating contests. A long-delayed Trump trial could mean no trial at all, since even some of Trump’s GOP competitors have slammed the investigation as partisan, suggesting they may try to force the Justice Department to drop the case if elected.
Joseph DeMaria, a longtime lawyer in private practice in Miami, said the dispute over timing highlights a feature of federal court in South Florida, where judges order trials to happen quickly.
“For at least a decade, we have become a rocket docket, where criminal cases are pushed fast, so defendants often end up having to plead guilty,” DeMaria said. “The tension here is between the rocket docket approach, and Trump wanting to put this off another year.”
DeMaria said it is reasonable for Trump’s lawyers to seek a few months beyond December to work through the classified issues in the case before going to trial. But he also noted that any delay to the prosecutors’ proposed trial date is complicated by an unrelated criminal trial scheduled in March in New York, where Trump is charged with falsifying business records in connection with hush money payments during the 2016 election.
“The question for Judge Cannon is: Is she going to follow the rule for every other defendant that’s before her, or does he get a break?” DeMaria asked. “I think he should get a break, not because he’s Trump, but because it’s fair.”
Whatever new trial date Cannon sets at this early stage will be less of a promise and more of a goal post — one that can and often does move to accommodate delays caused by legal arguments over evidence and case precedent. Decisions on some pretrial issues in the Trump case, particularly involving the classified evidence he allegedly withheld from the government, could be appealed, a process that could drag on for months and significantly alter whatever calendar Cannon sets.
Still, Trump’s request shows that a key part of his legal strategy will be trying to delay the schedule proposed by federal prosecutors. In ruling on the dueling proposals, Cannon — a Trump nominee whose actions are being closely scrutinized — will offer her first signal about how quickly she wants the case to move.
Special counsel Jack Smith, who was appointed by Attorney General Merrick Garland to handle the Trump investigation with a great degree of independence from Justice Department leadership, told Cannon he was pushing for a December trial date because the case “involves straightforward theories of liability, and does not present novel questions of fact or law.”
Trump’s lawyers disagreed in their filing, arguing that the case hinges on untested legal questions about the Presidential Records Act and saying that the stakes are simply too high to hold the trial during the 2024 campaign, since the outcome could affect the presidential contest.
“Proceeding to trial during the pendency of a Presidential election cycle wherein opposing candidates are effectively (if not literally) directly adverse to one another in this action will create extraordinary challenges in the jury selection process and limit the Defendants’ ability to secure a fair and impartial adjudication,” the defense lawyers wrote. “... Here, there is simply no question any trial of this action during the pendency of a Presidential election will impact both the outcome of that election and, importantly, the ability of the Defendants to obtain a fair trial.”
Running for president, Trump’s lawyers wrote, “requires a tremendous amount of time and energy, and that effort will continue until the election on November 5, 2024. Mr. Nauta’s job requires him to accompany President Trump during most campaign trips around the country. This schedule makes trial preparation with both of the Defendants challenging. Such preparation requires significant planning and time, making the current schedule untenable.”
The defense lawyers also argue that Trump cannot realistically be prepared to go to trial later this year, given the two other trials he is facing: the March criminal trial in Manhattan, and a civil trial, scheduled to begin in October in New York, over fraud allegations leveled by the state’s attorney general.
Those issues, in addition to the large amounts of evidence that need to be reviewed in the classified documents case, and the complexity of preparing for a trial involving such restricted material, means a trial in just six months would be unfair, the lawyers wrote.