Jack Smith, the special counsel investigating the documents about former President Donald J. Trump, vowed to seek « a speedy trial. » But that will be up to Judge Aileen M. Cannon, who will wield considerable power over the schedule, evidence and jury.
Last year, Trump-appointed Judge Cannon briefly halted the investigation into the documents by issuing rulings in his favor when he challenged the FBI’s search of his club and Florida estate, Mar-a-Lago, before that a conservative appeals court rule that he never had standing to intervene.
How he will handle his second shift in the spotlight remains to be seen. It’s also unclear whether she will refer some pre-trial motions to a magistrate judge who works under her. But here’s a closer look at how her decisions as presiding judge—such as what can be included and excluded—might affect the case.
Slow down the calendar
Mr. Trump has long pursued a strategy of trying to delay legal proceedings against him in order to run out of time. If the trial can be postponed until after the 2024 presidential election, he or another Republican candidate could take office and close the case.
« I think the Justice Department will do everything in its power to bring the case as soon as possible, but it will be a challenge to bring it before it gets to the primary, » said Brandon L. Van Grack, a former federal prosecutor who worked on complex cases involving national security and classified material.
He added: « These issues are incredibly important to understand because we’re talking about a case that could affect an election – and more than just the general election. »
Classified evidence
Before the trial begins, it is almost certain that there will be extensive litigation behind closed doors over the use of classified evidence, a matter governed by the Classified Information Procedures Act, or CIPA. The law was intended to reduce opportunities for so-called graymail in criminal cases involving national security, in which defendants threaten to reveal sensitive secrets unless prosecutors drop the charges against them.
One potential problem: whether the government should publicly expose all 31 classified documents that underlie the 31 counts of indictments against Trump for illegally holding national security secrets. Their content is key evidence of whether they qualify as the type of information protected by the Espionage Act.
CIPA establishes judicial procedures to protect sometimes sensitive information from the public, including by redacting some documents or replacing abstracts. But defense attorneys may argue that they must discuss its entirety in open court for the trial to be fair.
If Mr. Smith obtained intelligence community consent to use those 31 documents on the basis of assurances that he would keep them from wider public disclosure, any ruling by Judge Cannon requiring them to be shown in public hearing could prompt the government to waive some of the charges on the basis of those documents instead.
Trump’s defense lawyers are also likely to argue that the government is obligated to turn over related classified material in the « discovery » phase, and they may even want to use some of those documents in public hearings. Both sides can appeal Judge Cannon’s decisions on these matters before the trial, creating additional opportunities for delay.
Attorney-client trials
Exposing allegations that Mr. Trump obstructed government efforts to recover documents and caused one of his lawyers to make a false statement to the Justice Department, federal prosecutors described Mr. Trump’s interactions with his legal team . These include how he apparently suggested shredding confidential documents and hid from his lawyers that he had boxes of files removed from a storage area after a subpoena.
Normally, prosecutors cannot subpoena defense attorneys and force them to testify or hand over notes about their client. Under the attorney-client privilege, the confidentiality of such discussions and work is protected.
That privilege is meant to protect the rights of people who are in trouble over a potential past offense. People need to be able to talk openly with their lawyers about what happened to understand their options. This would be impossible if anything people admitted could be used against them as evidence in court.
But there is one exception: when attorney-client communications are part of ongoing or future crimes. If the judges believe there is enough evidence to trigger this « criminal fraud plea, » they will uphold a subpoena forcing defense attorneys to provide evidence about what they and their clients said to each other.
During the investigation, Judge Beryl A. Howell of the federal District Court for the District of Columbia ruled that the exception applied, forcing Trump’s attorneys to provide information to the grand jury. But Judge Cannon is not bound by Judge Howell’s decisions when it comes to what information should be presented to a jury.
During pre-trial motions, if Mr. Trump’s attorneys ask Judge Cannon to suppress evidence to protect attorney-client privilege and she does, prosecutors could appeal – but that would further delay the case.
If you were to defer a decision until after the trial has begun, prosecutors could interrupt the trial and attempt to appeal using an extraordinary and rarely used tactic called a deed of mandamus, he said Paul F. Rothsteinprofessor of law at Georgetown University and specialist in criminal procedure.
Prosecutorial misconduct complaints
Mr. Trump and his legal team have signaled they will attack prosecutors and investigators. That could mean pre-trial motions to dismiss charges based on any allegations that prosecutors engaged in misconduct such as improper witness pressure, vindictive prosecutions, and selective prosecutions.
It is common for defendants to make such claims, and it is common for judges to briefly review and dismiss them. THE standard to find a violation are very high. But had Judge Cannon upheld those claims, he could have questioned prosecutors, held hearings, and essentially put the investigators on trial before Mr. Trump faces any juries.
Jury selection
Prosecutors and defense attorneys will have a number of “mandatory” arraignments where they can prevent someone from being on the jury without stating a basis. But they also have unlimited challenges to potential « cause » jurors if they can point to signs that those people are biased. Judge Cannon will have the power to accept or deny any arraignment « for cause, » potentially tilting the jury’s composition.
‘Rule 29’ motions for acquittal
After the prosecution and defense present evidence, the defense can file a so-called Article 29 motion asking Judge Cannon to acquit Mr. Trump of one or more charges, arguing that the prosecutors’ evidence was lacking.
He could do it one of two ways: acquit Mr. Trump right away, or let the matter go to the jury and then only enter an acquittal if the jury wanted to convict instead.
If the judge waited, leaving it up to the jury to vote on the conviction, prosecutors could appeal the judge’s acquittal order and get it overturned, he said Julie O’SullivanGeorgetown University law professor and former federal prosecutor. But if the judge declared the defendant acquitted before any verdict by a jury, he said, that outcome would be final and prosecutors couldn’t appeal it.
Jury hung
In federal criminal trials, all 12 jurors must unanimously agree that prosecutors have proven each of the elements of a crime beyond a reasonable doubt to convict.
If the jury can never reach consensus, the result is a mistrial and prosecutors would then have to decide whether to start over with a new trial. Judges typically try to avoid this by encouraging jurors to resolve their disagreements and reach consensus with a resistance and by giving them more time to deliberate. But if there is an early disagreement, a judge could also bring the government to its knees by declaring a mistrial immediately.
