The exhausting fight over what jurors will see in Trump classified documents trial

For weeks, former President Donald Trump and special counsel Jack Smith have been locked in a tense courtroom fight over what information will be divulged to a jury at his eventual trial over alleged retention of classified records.

Trump’s first of two federal criminal indictments levied by Smith charges him with 40 counts related to mishandling classified documents at his Florida estate and for attempting to obstruct the government’s investigation and efforts to retrieve the records. A tentative trial has been set for May 20 but could be delayed due to Trump’s expected motions to dismiss the case, coupled with conflicting legal proceedings over three separate indictments.

Smith has stressed that the law favors “the public’s right to a speedy trial.” In December, he sought to have a jury questionnaire procured by a proposed Feb. 2 deadline, a time frame that Cannon found could not be met, and set a Feb. 28 deadline instead. The questionnaire’s completion is crucial to the special counsel’s urgency to adjudicate the case, as no trial can commence without it.

Since then, government and defense counsel have debated at length the extent of classified discovery materials that Trump’s attorneys should be able to witness, while prosecutors oppose such efforts and seek to redact certain records before they are introduced at trial. The forefront of the fight surrounds Trump’s January motion to compel discovery, which requests presiding U.S. District Judge Aileen Cannon to compel prosecutors to turn in additional information they believe to be helpful to the three defendants in the case.

A Washington Examiner review of hundreds of pages of court filings from the past two months paints a picture of a brewing battle over the extent of the case’s discovery filings currently under seal that could potentially become part of the court’s record ahead of a trial.

In this image from video provided by the U.S. Senate, Aileen M. Cannon raises her hand after being sworn in to testify remotely during a Senate Judiciary Committee oversight nomination hearing to be U.S. District Court for the Southern District of Florida on July 29, 2020, in Washington. | (U.S. Senate via AP)

Cannon, an appointee of Trump, met with both parties last week at separate hearings held under seal in a sensitive compartmented information facility, or SCIF, a specially equipped secure room for viewing highly classified materials. Such hearings are key for Trump and Smith to reach the Feb. 28 deadline for the parties to “confer and file a joint jury questionnaire” to be approved and ultimately have potential jurors fill before the trial, according to a Dec. 22 order from Cannon.

The recent Feb. 12 and 13 hearings involve Section 4 of the Classified Information Procedures Act, or CIPA, which lays out how prosecutors dealing with classified information in litigation can request a court to withhold certain material that is not “relevant or helpful” to the defense and that may otherwise be unavailable for sharing under federal statute.

Before the jury questionnaire can be procured, Cannon must first rule on Trump’s CIPA motion for his attorneys to see classified filings “so that we can challenge the [special counsel’s] assertions in adversarial proceedings,” according to a Dec. 6 filing.

Trump attorneys Todd Blanche and Chris Kise wrote in a late-December response to Smith’s urgency to procure the questionnaire, saying the government’s pace is much too quick given the defense’s upcoming motions related to “Trump’s security clearances, the FBI’s illegal raid at Mar-a-Lago, unlawful disregard of President Trump’s attorney-client privilege, and other grand jury abuses, not to mention prosecutorial misconduct, selective prosecution, witness-advocate problems,” among a host of other matters the defense say should be addressed.

Attorneys representing former President Donald Trump, Todd Blanche, left, and Chris Kise, center, leave the Alto Lee Adams Sr. U.S. Courthouse after a pretrial conference to discuss procedures for handling classified information in the case against Trump, Tuesday, July 18, 2023, in Fort Pierce, Florida. (AP Photo/Lynne Sladky)

The former president’s counsel intends to file motions relating to the aforementioned issues by a Feb. 22 deadline. In hopes for an added buff in their bid to dismiss the case, Trump’s lawyers recently cited special counsel Robert Hur’s Feb. 8 report on President Joe Biden’s mishandling of classified documents from his time as vice president, in which no charges were recommended for the commander in chief.

The special counsel’s office railed Trump’s recent court filings previewing their “selective and vindictive” prosecution motion, saying in a Feb. 12 response that “the defendants attempt for the first time to raise legal and factual matters in support of selective and vindictive prosecution claims, presenting both argument and evidence that they did not offer in their opening brief.”

“The legal standards have long been settled, and, with the exception of the Hur report released this week, all of the defendants’ factual claims (some dating back decades) were readily available before they filed their motion to compel,” Smith’s team wrote.

Trump’s bid to have his lawyers access the government’s sealed court filings, which are off limits to defense counsel by default under statute, sets the stage for a potential headache for Smith, as even a partial ruling by Cannon in favor of Trump could trigger the first appeal of the case to the U.S. Court of Appeals for the 11th Circuit.

Cannon more recently defied Smith’s request to shield an exhibit on threats made against a potential witness. Smith said the Department of Justice should not have to hand over the information about the witness because it detailed a series of threats made against that witness, as they could also testify against Trump at the trial, and the matter is also the subject of a criminal investigation by the U.S. Attorney’s Office. Nevertheless, the prosecutors complied with the order before a Feb. 10 deadline.

Special counsel Jack Smith leaves after speaking to reporters on Friday, June 9, 2023, in Washington. | (AP Photo/Jose Luis Magana)

Smith’s team may have opted not to appeal the order to hand over the exhibit detailing threats, in part because it is attached to the special counsel’s Feb. 8 motion that asks Cannon to reconsider two earlier rulings that could reveal to Trump’s team the names of dozens of other witnesses who could testify against him.

Prosecutors’ motion for reconsideration matters greatly because if Cannon denies the challenge, it could make way for prosecutors to seek an injunctive appeal at the the 11th Circuit, which, if granted, would order Cannon to reverse the decision.

Cannon has already been overturned once at the 11th Circuit in relation to the Trump classified documents investigation. Before the indictment, she was overturned by the appeals court after she allowed a special master to examine nearly 100 files with classified markings that were seized from Mar-a-Lago during an FBI raid in August 2022.

Trump’s efforts to seek dismissal of the case on multiple fronts, his pursuit of additional records from the government to fortify his defense, and scheduling conflicts due to his three separate criminal cases can and likely will pose risks to the trial schedule in Cannon’s court, though it’s unclear whether it will ultimately delay the trial until the November election, where Trump is seeking to regain the Oval Office and could pardon himself from at least his two federal indictments.

Former President Donald Trump. (Shannon Stapleton/Pool Photo via AP, File)

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Moreover, Cannon has already signaled the May 20 trial start may serve as more of a placeholder at this stage of pretrial proceedings. Whether the parties can come to an agreement by the Feb. 28 deadline to procure the jury questionnaire could signal whether that date will remain intact.

Trump is facing 91 charges across his four separate indictments as he seeks to avoid a verdict in one of his criminal trials before the election and even before the mid-July Republican National Convention, as polls show his popularity could take a toll if he is convicted of the crimes alleged against him. He has pleaded not guilty to all of the charges.