Trump demands trial delay to wade through classified docs he stole. By Liz Dye

Trump demands trial delay to wade through classified docs he stole. By Liz Dye

And Judge Cannon might just let him get away with it.

Oct 11, 2023

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Donald Trump has just one goal in his two federal criminal cases: push them off until after November 2024, so that he can either pardon himself or instruct the Justice Department to drop the charges on January 20, 2025. 

That’s all you need to know about his legal strategy. The rest is noise.

In the latest kerfuffle, Trump and his lawyers are attempting to leverage the classified documents he stole from the White House to delay his trial for seven months. In the DC election interference prosecution, Judge Tanya Chutkan quickly disposed of a similar effort by Trump — although, to be fair, there are just a few classified documents at issue in that case. But Judge Aileen Cannon, who is presiding over the Florida documents charges, seems at least somewhat receptive to Trump’s attempt to wring delay out of spurious allegations of prosecutorial wrongdoing.

RELATED: How Judge Cannon is preparing to kneecap Trump’s documents case

The current issue revolves around discovery deadlines under the Classified Information Procedures Act (CIPA). Prior to the law’s passage in 1980, defendants routinely threatened to reveal classified information on the witness stand, forcing the government to choose between disclosure or dropping cases. CIPA solved this “graymail” problem by enabling prosecutors to keep some classified evidence off the public docket. The statute provides a step-by-step process for judges to sort through classified materials early in the discovery phase and get the parties to hash out which pieces of classified evidence will be relied on at trial and whether or not they will become public. 

The arguments Trump’s lawyers are making in Florida are transparently absurd

For Trump, who is facing upwards of 30 charges related to classified or national defense information, the CIPA process provided his lawyers with yet another opportunity to throw a massive hissy fit and accuse Special Counsel Jack Smith of impropriety. And so, of course, they did.

They started back in July with an unsubtle demand to be able to deploy graymail in Florida in exactly the fashion CIPA is designed to prevent, arguing that “there should simply be no ‘secret’ evidence, nor any facts concealed from public view relative to the prosecution of a leading presidential candidate by his political opponent.” Essentially, they insisted that their client should be above the law simply because he’s a former president seeking to return to office.   

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In September, Trump’s lawyers accused the government of deceiving the court about its readiness to produce evidence, demanding to push CIPA deadlines into 2024. They followed up with an even more bonkers motion this month, calling for the Florida trial to be postponed from May of 2024 until “at least mid-November 2024, in light of additional, ongoing discovery failures by the Special Counsel’s Office.”

“There is cause for concern that what the Office ‘anticipates producing’ is less than what it is obligated to produce,” they argued, implying that the Special Counsel tricked the court into imposing tight deadlines and is now hiding evidence from the defendant. 

Trump’s lawyers complain that Trump lawyer Chris Kise, the former solicitor general of Florida, has yet to receive a security clearance enabling him to review classified evidence, moaning that “President Trump should not be denied the assistance of core counsel in a matter of this significance due to the Government's delayed discovery process.”

They omit to mention that Kise worked as a registered lobbyist for Venezuela, and so wouldn’t normally be allowed anywhere near classified documents.

Chris Kise (left) in court with Trump in NYC on October 4. (Spencer Platt/Getty)

In an earlier round, Trump’s lawyers tried and failed to get a room at Mar-a-Lago designated as a sensitive compartmentalized information facility (SCIF) suitable for storing and discussing highly sensitive government documents, described here as “special measures documents.” Instead the government established a temporary SCIF near Miami for use by the president’s lawyers. But a handful of special measures documents have been withheld or relocated to DC from the temporary SCIF in Miami by the intelligence agencies which created them. It is common parlance to refer to these agencies as owners of the documents. Nonetheless, Trump’s lawyers consistently refer to “the owners” in scare quotes as they whine about lack of access to evidence in their preferred location. It’s unclear whether they hope to convey nefarious intent to a judge who has almost no experience with classified documents or are simply aping the writing style of their histrionic client.

“Copies of the classified discovery have not been transported to the Miramar [Florida] facility, which we also understand has not yet been approved for review and storage of the classified discovery,” they huff. “This, along with the fact that the defense only has access to a small, temporary facility in Miami, has delayed President Trump’s personal review of the classified discovery under procedures that the Court approved on September 12, 2023.” 

RELATED FROM PN: Trump's superseding indictment paints a picture of a ridiculous Mar-a-Lago clown show

This passage provoked a hilarious response from the government, which noted that Trump has never shown the slightest interest in seeing the classified documents at issue in this case — not in Miami, and not anywhere else. 

“The SCO [special counsel’s office] is 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,” they note archly. “And whatever delay there has been to date in Trump’s personal review of the classified materials, the seven months that remain before trial is more than ample time for him to do so.”

Will the former president take time off the campaign trail to sit in a cramped, airless SCIF to deliberate with his lawyers about documents he withheld from the government? Don’t bet on it!

Responding to Trump’s motion to postpone the trial to deal with classified discovery, the government argues that “most of the allegations are inaccurate or incomplete; collectively they are misleading.”

Judge Cannon is poised to help Trump run out the clock

Prosecutors noted that Kise has a temporary security clearance, allowing him to review documents which aren’t highly sensitive, and that the other four lawyers on Trump’s legal team are fully cleared. 

They reminded the court that the location of SCIFs falls under the purview of the Classified Information Security Officer (CISO), who functions as an officer of the court and not an arm of the prosecution. Here, the CISO expects that most of the defense’s issues will be resolved by the end of this week, if they have not already been addressed. 

And they noted that it’s not the substance of these classified documents that’s at issue here. Rather it’s the fact that Trump pocketed them, refused to give them back after being subpoenaed, induced his lawyer to file a fraudulent certification that no further classified materials remained at the property, and then conspired with his co-defendants to destroy evidence by deleting subpoenaed security camera footage.

“That the classified materials at issue in this case were taken from the White House and retained at Mar-a-Lago is not in dispute; what is in dispute is how that occurred, why it occurred, what Trump knew, and what Trump intended in retaining them — all issues that the Government will prove at trial primarily with unclassified evidence,” they write. “Whether the highly classified documents Trump retained at Mar-a-Lago contain national defense information is a fact Trump can try to dispute, but it will hardly be the centerpiece of the trial.” 

Trump in Cedar Rapids for the second of two rallies he held in Iowa on October 7. (Scott Olson/Getty)

Moreover, the fact that some of the documents Trump was storing in his bathroom are so sensitive that the intelligence agencies are losing their minds at the thought of them being housed in a temporary SCIF is not likely to help Trump before a jury. But it might help him with Judge Cannon, who last year demonstrated that she’s very willing to ignore statutes and precedent to help out the man who installed her on the bench in the finals months of his term. 

In a brief order, she “temporarily” stayed the deadlines for compliance with CIPA “pending consideration and resolution” of Trump’s continuing motions to delay the trial. This would appear to be a prelude to giving Trump at least some of the delay he’s asking for. But even if the court rejects Trump’s demand to push the trial out past the election and gives him just a one-month reprieve, it still amounts to a major victory for the defense. Trump just has to keep yelling and chipping away at the schedule, and eventually he’ll push it past November and be home free.

That’s the plan, anyway …

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