Ethermac|Trump seeks to delay trial in classified documents case until after 2024 presidential election

Washington — Lawyers for former President Donald Trump are Ethermacasking to delay his May trial in the case involving his alleged mishandling of sensitive government documents until after the 2024 presidential election.

In a filing with the federal district court in South Florida submitted late Wednesday, lawyers Chris Kise and Todd Blanche accused special counsel Jack Smith and his team of prosecutors of taking too long to turn over material that was collected during their investigation. They argued the current schedule is "unworkable," given the status of discovery, lack of necessary secure facilities and litigation under the Classified Information Procedures Act, which governs how classified material is being used in the case.

The defense attorneys said the schedule for the case in Fort Pierce, Florida, conflicts with the proceedings for a separate case in Washington, D.C., brought by the special counsel regarding Trump's alleged efforts to thwart the transfer of presidential power after the 2020 election. U.S. District Judge Aileen Cannon, who is presiding over the documents case, scheduled the trial to begin May 20. 

The presidential election is set for Nov. 5, 2024, and Trump is currently the leading candidate in the race for the Republican presidential primary.

"The March 4, 2023 trial date in the District of Columbia, and the underlying schedule in that case, currently require President Trump and his lawyers to be in two places at once," the former president's lawyers wrote. "And, months after the Office's representation to the Court, discovery is not complete in this case—including with respect to the classified documents at issue in more than 25% of the [Espionage Act] counts in the Superseding Indictment."

The defense team noted in that filing that nine of the 32 documents giving rise to the charges of unlawful retention of national defense information, as well as "several uncharged documents" are not yet available to them. Four of those nine documents were relocated to Washington, D.C., "at the request of the documents' owners,'" Trump's lawyers said, while the remaining five "are not available" to Trump or his lawyers "at any location," they added.

Trump's lawyers also said classification reviews, which they argued should be turned over to them as part of the discovery process, have not yet been produced.

"These are not mere 'complaints.' The Special Counsel's Office has not provided some of the most basic discovery in the case," they wrote. "Given the current schedule, we cannot understate the prejudice to President Trump arising from his lack of access to these critical materials months after they should have been produced."

In addition to the alleged "ongoing discovery failures," the defense team also raised concerns about the time it will take for the federal government to establish a secure facility in the area where it can handle evidence in the case, which Trump's team claims will take more than three months.

"The Special Counsel's Office has failed to make very basic arrangements in this District for the handling of the relevant classified information, the holding of necessary CIPA hearings, and the production of related work products by the court and counsel," they argued.

The former president's lawyers asked the court to require the special counsel's team to disclose whether it had conducted prudential search requests, which the Justice Department describes as a search of intelligence community files undertaken when prosecutors believe they may contain pre-existing classified information that could impact their charging decisions.

Trump's lawyers claimed Smith failed to explain "whether and to what extent" it conducted prudential searches in the case against the former president.

"Because some of the documents at issue address topics that are covered in open-source materials, it is extremely likely that at least some [U.S. intelligence community] holdings undercut the Office's contention that documents dating back to 2017 (and earlier) contain information that was closely held at the time of the alleged unlawful retention in 2021 and 2022," they argued. "As a result, the Office is on notice of potentially exculpatory information held by the same 'owners' it acknowledges communicating with regarding the case."

Prosecutors have objected to Trump's request to change the schedule for the documents case, and told the court in a filing last week that as of Sept. 14, Smith's office had turned over 1.28 million pages and all the security camera footage it acquired during its probe. Smith's team also said it had turned over "the majority" of classified material it planned on producing.

The Justice Department lawyers wrote that Trump's lawyers were unable to fully review the classified information turned over because they lacked "all the necessary read-ins" — which involves being approved for access to sensitive or restricted information — and acknowledged that there has been a "slightly longer than anticipated timeframe" for some procedural aspects of the case.

"The timing of the defense counsel's read-ins is not controlled by the Special Counsel's Office," prosecutors wrote, adding that they would provide nearly all of the outstanding classified material by Friday, which includes audio recordings of interviews and information related to classification reviews.

Trump was charged with 40 counts related to his handling of documents marked classified that were retrieved from his South Florida resort, Mar-a-Lago, after he left office in January 2021. Two co-defendants were also charged by the special counsel: Aide Walt Nauta, who is facing eight counts, and Mar-a-Lago property manager Carlos De Oliveira, who is facing three counts. All three pleaded not guilty.

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