The New Trump Florida Trial Date Is Sensible. It Also Leaves Us in the Dark About What Judge Aileen Cannon Learned

Posted in: Criminal Law

Federal district court judge Aileen Cannon today set the trial date for May 2024 in Donald Trump’s trial for obstructing justice and unlawfully taking and hoarding national security documents at Mar-a-Lago after he left office.

She did what judges often do—“split the baby” between the proposals of special counsel Jack Smith, to set the date for December 11, and Trump’s proposal for a trial after the November 2024 election.

That was reasonable. It gives Trump’s lawyers time to prepare in light of the complications of the case, dealing with highly classified documents, and the volume of evidence that Smith has sent them.

And it doesn’t yield to Trump’s request to delay the trial so long that it would not happen at all if he were to be elected President.

That tells us she learned something from her previous run-in with the Justice Department, but not necessarily that she’ll no longer treat the President better than other defendants when she can. It could be that she learned how to thread the judicial needle to avoid an appeals court’s slap down.

More on that after the background.

Recall that Cannon initially set the trial date for August 14, consistent with the “rocket docket” scheduling that federal courts in the Southern District of  Florida frequently follow. Such a date was never going to stand.

Understanding that the date was set more or less automatically and not realistic for his case, in June, Smith proposed a continuance of the trial date until December 11. The federal Speedy Trial Act entitles the government, as well as the defendant, to an expeditious trial so that both the person charged, and the public, get the charges resolved without them hanging over the defendant’s head for longer than necessary.

Smith has expedited his initial disclosure to the defense of discovery in order to accommodate the setting of a trial as early as possible. He was obviously mindful of the 2024 election calendar, and of the desirability to have a trial before next year, if at all possible.

Meanwhile, Trump’s lawyers originally asked to delay trial-date setting indefinitely. That was not just a long shot; it was so far beyond sensible judicial administration of justice that it was more like a moon shot by a Toysmith water rocket.

Many trial judges, when faced with a Speedy Trial Act continuance motion that proposes a reasonable trial date, and the responding party’s declining to propose a date at all, would pick the first, knowing the date could be moved back later. Picking the first date would send a valuable message that the court has no patience for nonsense.

At July 19’s scheduling hearing with the court, Trump’s lawyers sought to preempt that possibility by inching ever-so-slowly in the direction of reasonableness, asking that a trial date be set for after the November 2024 election . . . but not specifying one.

Now recall that last September, Judge Cannon issued a legally untenable decision to appoint a special master to review the documents the FBI seized in its court-authorized search of Mar-a-Lago the previous month. The Justice Department immediately appealed. The U.S. Court of Appeals for the Eleventh Circuit promptly knocked down that ruling.

The court blasted Cannon’s decision on the ground that it did more for a former president than what the law affords other defendants, violating the fundamental precept that criminal courts rule similarly for all parties, no matter their importance, past positions or means.

So today, she avoided such obvious and impermissible favoritism while still giving the president who appointed her a bit of a victory by rejecting prosecutors’ proposed date in late 2023. She did so by choosing May and basing her decision on the defense’s need to consume millions of pages of documents and have time to prepare pretrial motions.

That is how to sidestep an unwanted new appeal by the Justice Department.

And she can always further postpone the trial date with the passage of time as the case develops. Expect Trump’s lawyers to stretch that passage at every opportunity.

Judge Cannon’s ruling today gives us a hint at how she will deal with such delaying tactics, as he asks for further postponements of trial. She may well grant further delays but continue choosing dates that are sufficiently sensible to avoid appeals.

In that way, she could move dates back incrementally to the point where the trial would be set after Trump is nominated and it becomes virtually impossible to have a trial before the election.

Until further trial date rulings occur, however, we won’t know exactly where she stands between the goalposts of justice undelayed and helping Donald Trump avoid a trial. We do know, however, that as she makes each decision, the eyes of the country will stay on her.

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