The Week Ahead

July 2, 2023

What to Watch for With Trump This Week

Donald Trump has until this coming Thursday, July 6, to respond to the government’s motion to set the trial date in the classified-documents prosecution for December 11, 2023. How hard can Trump try to delay the case? We’ll be counting the ways on Thursday. It would be surprising to see Trump agree to the December trial date. One immutable truth here is that Trump doesn’t want to face justice at the hands of a jury in a courtroom where he is not in control. And especially not with special counsel Jack Smith in the prosecution seat.

As for Smith, he has made a smart strategic play here by asking for a December trial date. Does he think the case will be ready to try in December? That’s five months off—lots of time for lawyers to prepare. It could be tough, because Trump will have the opportunity to slow-walk the ball on decision-making about the proposed usage of classified material in the courtroom. But Smith included a proposed schedule for handling classified-documents issues that would get the case into court in December, to back up his argument that this schedule can be met.

It’s a bit of a double-edged sword for Trump. He could agree to the December date, which he won’t do, at least not without the intention of asking for a continuance as that date gets closer. If Trump objects to a December trial and asks for a date after the first of the year, the government will undoubtedly demand a ruling that he cannot use rallies, campaign events, and primary dates as an excuse for further delay. Since it would be entirely reasonable, under the government’s proposed schedule, to try the case in December, if Trump asks for additional leeway and the Court grants it, there is no reason it shouldn’t come with conditions that ensure the people get their right to a speedy trial.

The government says in its motion that “this case is not so unusual or complex…because it has only two defendants, involves straightforward theories of liability, and does not present novel questions of fact or law.” There is no reason, even with classified-documents issues to be resolved, that the case cannot be ready to go to trial, if not in December, in the first few months of 2024. Unless Trump can identify one, it would be a red flag if the judge gave Trump preferential treatment, in terms of continuing to delay proceedings while campaigning, that other defendants can’t receive.

The government moved quickly to turn over non-classified discovery and to tee up the rest of discovery so the defendants can begin to prepare their defense and their pretrial motions. There’s no legitimate reason for an extended delay before trial and certainly no reason to delay it until after the 2024 election, more than a year off. A ruling to that effect from Judge Cannon would likely provoke renewed concern about her ability to handle the case in a fair and unbiased way. Expect Trump to make the motion, but a decision by the judge to move the trial that far off would be unprecedented.

If there are any Speedy Trial Act geeks in the house, you know that by statute, the government has 70 days from the date of arraignment to try a defendant who has been charged in an indictment. So how can the government get away with asking for a December trial date? That’s because the Act provides for “excludable time”—periods of time that don’t count as part of the 70-day window. For instance, the Act excludes any period of time necessary for examinations “to determine the mental competency or physical capacity of the defendant.” There are exclusions for delays resulting from a trial on other charges against the defendant, appeals of a district judge’s ruling to a court of appeals, and the time it takes for a judge to rule—the statute specifies a “prompt disposition”—on any pretrial motions. In other words, that 70-day time frame can get blown up pretty fast.

The Speedy Trial Act also explicitly contemplates an extension of the time period when the judge sets a later date for the trial to begin.

But this type of delay stops the Speedy Trial Act clock from running only if the judge continues the trial because “the ends of justice” require it. Even then, the court is required to set forth its reasons on the record.

The special counsel’s motion to delay trial details the time necessary to complete the classified review process and for defense lawyers to review non-classified discovery. It concludes that “proceeding to trial on August 14, 2023, ‘would deny counsel for the defendant or the attorney for the Government the reasonable time necessary for effective preparation,’…and the ends of justice served by granting this requested continuance ‘outweigh the best interests of the public and the defendant[s] in a speedy trial.’” Smith concludes his motion to extend the trial date by asking the court for an order that excludes “the delay resulting from the continuance of trial from the speedy trial calculation” on this basis. He’s rung the bells in the statute for bringing the December trial date within the Speedy Trial Act, because the number of days beyond 70 between the time of arraignment and the state of trial would all be “excludable time” under this provision.

Now you’re all experts on Speedy Trial Act calculations!

Despite voting to indict Trump and his co-defendant Walt Nauta, the grand jury in the Southern District of Florida is still at work. That’s not entirely unusual, but once prosecutors have brought an indictment, they can’t continue to use the grand jury to investigate the charges that are made in it. They can, however, investigate different defendants or additional charges against defendants who have already been indicted. Sometimes, ongoing grand jury proceedings like these signal an investigation into witness tampering or obstruction of justice in the indicted case. We don’t know what work this grand jury is doing at this point, but it’s an intriguing detail. Perhaps we’ll see more charges in the week ahead.

Wishing all of you a Happy Fourth of July, filled with all of your favorite foods! My family will be knocking back our fair share of Dreamland’s ribs, with baked beans, corn on the cob and watermelon. Nothing fancy, but very delicious.

Birmingham celebrates the Fourth with “Thunder on the Mountain,” a fireworks display at Vulcan Park that can be seen across much of the city. Vulcan is the largest cast-iron statue in the world at 56 feet tall.

You will know your people, but consider making the pitch at your Fourth of July celebration (if you’re in the U.S. or with Americans) for people to register to vote. Primary season will be here before we know it. Remind people that the local races that are easy to skip over have a real impact on our daily lives—everyone needs to get educated and vote in local elections for school boards, state legislatures, and city councils. But there’s no denying that the big show is the 2024 federal election, where people who believe in democratic values need to take both houses of Congress and retain the White House if the damage the Supreme Court has done this term is going to be undone. It’s time to get started.

The first step is to make sure people are registered to vote. Use vote.org or one of the other websites that let people instantly check their status and register if they aren’t already. Pull out your phone at the family picnic and make it the cool thing to do. No better way to celebrate Independence Day.

We’re in this together,

Joyce