Federal District Judge Tanya Chutkan has set a particularly tight trial date in the District of Columbia case against former President Donald Trump, according to several lawyers.
The case targeting President Trump’s efforts to challenge the 2020 election results should go to trial on March 4, the judge ruled on Aug. 28. That’s two months later than proposed by the prosecutors with special counsel Jack Smith, but more than two years earlier than the defense asked for.
The prosecutors argued that there’s an “exceedingly and unprecedentedly strong” public interest in speedily resolving the case but also acknowledged that “there’s also a strong public interest in a fair trial,” which includes giving the defense enough time to prepare.
“It is certainly an aggressive timeframe. I did not think she was going to set a trial date that soon,” John Malcolm, a former federal prosecutor who’s now vice president of The Institute for Constitutional Government, told The Epoch Times.
Leslie McAdoo Gordon, a defense attorney and legal analyst, called the schedule for the trial and pre-trial proceedings “disgraceful.”
The case, brought by Mr. Smith on Aug. 1, alleges that President Trump didn’t genuinely believe that the 2020 election was stolen from him and that his attempts to challenge the results constituted several crimes, including a conspiracy to obstruct the collection and counting of electoral votes, as well as a conspiracy against Americans’ right to vote.
President Trump’s lawyers have argued that they need years to prepare for the trial in order to review the nearly 13 million documents and files handed to them by the prosecutors as part of the discovery process.
“Not only do we have to review this material, we have to absorb it,” Trump lawyer John Lauro said during an Aug. 28 court hearing, shortly before the judge made her decision.
The defense plans to challenge the charges from multiple angles.
The lawyers believe that President Trump acted “within the outer perimeter” of his duties when he challenged the election results and is thus protected from prosecution by executive immunity. They also plan to allege selective prosecution based on the fact that the charges were produced by the Biden administration and President Joe Biden is running for reelection against President Trump. They also argue that Mr. Smith is using criminal laws in a novel way that may not be permissible, according to Mr. Lauro.
“This is one of the most unique cases from a legal perspective ever brought in the history of the United States,” he said.
New Info or Not?
The prosecutors tried to downplay the volume of the discovery, explaining that almost 8 million pages of the material were duplicative or were available to President Trump before the charges were filed, including documents from the National Archives, from his 2020 campaign, and from political action committees, as well as public materials, such as those produced by the congressional Jan. 6 committee.The judge signed off on the argument, noting that “that’s not brand-new information” to the defense.
Mr. Lauro disagreed.
“To a criminal defense lawyer, it’s brand-new information,” he said.
“It would be a miscarriage of justice if a lawyer were expected to absorb all the information that a client already knew and not look at it anew and not look at it from the perspective of a criminal defense.”
Mr. Lauro also pointed out that he was hired only a month and a half ago.
However, the judge argued that other lawyers of President Trump’s have likely already reviewed the materials.
Review How?
About 5 million pages fall into the category of documents that the prosecutors are “really taking about” as information that wasn’t already available to President Trump’s team, according to Assistant U.S. Attorney Molly Gaston during the hearing.Even that would amount to more than 25,000 pages that the defense would have to review every day before the trial.
It’s difficult to gauge the time needed to review the documents without knowing “the nature of the evidence,” according to Mr. Malcolm. Reviewing one full page of text is much different than reviewing a page that contains only a few short emails or text messages.
The prosecutors didn’t go into all such details. They said more than 58,000 pages come from witness interview files, including transcripts.
In an Aug. 21 court filing on the matter, they argued that it’s a “faulty assertion that it is necessary for a lawyer to conduct a page-by-page review of discovery for a defendant to receive a fair trial.”
Mr. Malcolm disagreed.
“If you provide it to a defense attorney as part of discovery, then a defense lawyer has to review it, and he’s got to be able to talk to his client about it,” he said.
Mr. Scharf concurred.
“If they’re turning over all of that information, they see some relevance in all of those documents. Presumably, the defense might as well,” he said.
“The Trump team has a right to assess the evidentiary value of everything that’s been turned over to them.”
The prosecutors said the defense “can, should, and apparently will adopt the benefits of electronic review to reduce the volume of material needed to be searched and manually reviewed.”
But that only helps to organize the information, according to Mr. Lauro.
“No documents get reviewed electronically,” he said. “They get assembled electronically.”
Still, that may point the lawyers to documents that could be safely ignored, leaving it unclear how much text would ultimately need to be reviewed manually.
Appeal
President Trump suggested that he would appeal the trial date issue to a higher court. That doesn’t seem to be a straight-away option, according to attorney Mike Allen, a political analyst and former prosecutor in Ohio.“To the best of my knowledge, trial dates are not appealable. I have never seen it happen in federal or state court,” he told The Epoch Times.
“If they could wrap it around some other type of unfairness, perhaps a judge would entertain it, but I doubt it.”
Insufficient time to prepare a defense could be an argument in an appeal, but only after conviction, Mr. Malcolm said.
What could be appealed immediately would be the executive immunity issue, and that would be expected to put the case on hold, according to Mr. Scharf.
Background
President Trump is already facing a May 2024 trial in another case brought by Mr. Smith in Florida that deals with his retention of national defense documents from his term in office. Another trial, scheduled for March 2024 in New York, relates to alleged false bookkeeping entries. Yet another case underway in Georgia is also targeting the former president’s efforts to challenge the 2020 election results. The trial date hasn’t been set, but the prosecutor, Fulton County District Attorney Fani Willis, first proposed March 2024 and then October 2023 when one of the co-defendants asked for a speedy trial. A number of lawyers have opined that even the March 2024 date is unrealistic.Ultimately, all of the haggling over trial dates boils down to the political implications of charging a top-of-the-pack contender for the presidency during the election season, Mr. Scharf said.
“The timing concerns that we’re running into are more than anything else a function of decisions that these various prosecutors have made knowingly and willingly,” he said.
