Cannon Signals More Favors for Trump

Published with the generous permission of Amee Vanderpool. For more of Amee's work, visit her Shero newsletter.

By Amee Vanderpool

Two judges overseeing two separate court trials for Donald Trump in two different jurisdictions issued rulings minutes apart that dealt with the exact same legal issue: how the Classified Information Procedures Act (CIPA) applies to criminal litigation in Trump’s case that involves classified exhibits. Considering that the law in this area is fairly clear, with a codified procedure to be undertaken by the court, both decisions should have been fairly cut and dry. This was not the case.

Under CIPA Section Four, the US Attorney’s Office is able to submit a summary of materials to the defense that they will expect to use in trial, without litigating whether the documents are actually admissible as evidence. This is the first attempt the government can take in narrowing out all of the irrelevant information that will have no bearing on the case. First, classified information that is not applicable or helpful to the defense is excluded, and then additional protections for the classified information that is relevant are proposed. The judge then makes a determination as to the admissibility of that evidence.

The Justice Department is able to cut through the extraneous legal material by relying on an expert who has the proper credentials to view the materials, who often makes a declaration as to why the material should be “classified.” This is done to ensure that the defense is not able to secure an advantage by forcing the prosecution to reveal the theory of their case in the disclosure of documents. Prosecutors can then ask the court to “delete” certain evidence — in part or in its entirety — that is considered classified from discovery but not necessary for the defense, without breaching any prosecutorial trial strategy.Prosecutors may also ask the court to permit either substitutions or summaries of classified information that is relevant and helpful, but still warrants extra protections. Example: a substitution could be inserting “Country A” instead of the name of the country, or “Fall 2022” instead of a specific date. A summary could involve drafting a summary of a CIA memo that omits some of the more sensitive details from the document, while still providing the discoverable information to the defense.

If the substitutions or summaries that are presented by the prosecution put the defendant in the same position in terms of being able to defend their case, then the omitted details are considered immaterial to the defense. The process is meant to narrow down immaterial information, that is not relevant to the legal merits of the case, while ensuring that security of the information remains protected and that the rights of both parties ensured.

In her decision yesterday, Judge Chutkan took a few pages to issue a ruling that followed the basics: precisely explaining the governing law, applying the facts at hand, and coming to a concise determination that ultimately keeps the established practice of disclosure in place. Chutkan took several pages to dismiss the main argument from Trump’s counsel that revolved around the statutory meaning of the word “defendant.” Had that allowance been made by Chutkan for the defense, Trump would then have access to whatever is in the government’s possession, custody, or control.

In stark comparison in the Southern District of Florida, Judge Cannon issued a circuitous 15-page ruling that relied on secondary legal sources to make a determination. Ultimately, Cannon determined that an open-court hearing on whether or not to use the classified documents was warranted, thus defeating the purpose that CIPA serves to protect the prosecution’s case in chief. Judge Chutkan succinctly followed the law, while Judge Cannon came to the conclusion she wanted and then used a secondary, non-applicable source to attempt to justify her reasoning.

There is little doubt that the Cannon ruling will quickly be appealed by Jack Smith’s team at the Justice Department. It is not likely that Eleventh Circuit will need much time to weigh the correct approach on whether to reverse Cannon’s decision, given how erroneous she is in her legal conclusion. No hearing will take place until the appeals court has had time to reverse the ruling, so while little harm will actually be done, the defense, with the ongoing assistance of Judge Cannon, has succeeded yet again in wasting more of the Court’s valuable time.

The issue of timing is the next big tell from Judge Cannon that indicates she intends to continue favoring Donald Trump as a defendant whenever possible. On Wednesday, Cannon announced in court that she is considering the delay the start of Donald Trump’s classified documents trial. The announcement came after Trump’s attorneys requested that the Court postpone the trial based on the time consuming nature of the other criminal cases Trump faces, citing the extensive amount of work that is supposedly causing issues for the defense.

Cannon appeared to side with Trump’s attorneys in their request to postpone the trial yesterday, saying she “has a hard time seeing how realistically this [current schedule] would work,” as prosecutors urged her to keep the scheduled start date of May 20, 2024. Cannon specifically referenced the 1.3 million pages of evidence that prosecutors in the Mar-a-Lago case have provided to the defense along with thousands of hours of security video shot at Trump’s resort to questioned whether Trump’s lawyers will have adequate time to prepare. “I am not quite seeing a level of understanding on your part to these realities,” Cannon told prosecutor Jay Bratt, a member of Smith’s team.

Prosecutors responded to the request to push back a trial start date by arguing that Trump’s attorneys have been ardently working for some time to delay the trial until after the November 2024 election. The Department of Justice argued that Judge Cannon “should not let the [tactics of the defense in the] DC trial drive the schedule here.” Bratt also confirmed that his team has provided Trump’s lawyers with a directory to the Mar-a-Lago documents to assist them in their preparation and advised them of the portions of security video they plan to play at trial.

Trump attorney Todd Blanche next claimed that prosecutors are being unrealistic with regard to timing, considering the classified documents can only be read in special government rooms that have heightened security and that “it has been extremely difficult to have access.” While a Sensitive Compartmented Information Facility (SCIF) was established in Miami, Florida, in order to secure the highly classified materials gathered by Smith's team over the course of their investigation, the facility is quite accessible to all of Trump’s counsel. Donald Trump has even visited the facility to review the information for himself.

Not all of that evidence is essential, and a cursory review by legal professionals with the proper clearance (this is typically called a document review and it happens all the time) could easily cut down the time constraints for the defense. It is common a legal defense strategy to employ the assistance of several attorneys and legal professionals in order to sift through massive amounts of information involved in their client cases.

The special counsel team says it has produced about 5,431 pages of classified discovery to Trump and his defense attorneys, which includes "four discs of photographs, audio recordings, and material extracted from electronic devices. While this amount of evidence is substantial, it is hardly insurmountable — with all of his extensive funding and access, Trump’s counsel is more than capable of providing the necessary assistance in order to proceed in a timely fashion.

The solid and consistent pace at which the Washington, DC, trial is progressing is further evidence that Trump defense attorneys in Florida are only making excuses in order to postpone the trial for political purposes. Donald Trump was indicted in Jack Smith’s federal case in Washington, DC, on August 1, 2023, some 54 days AFTER he was indicted in Miami and there have been no real issues with setting a start date of March 4, 2024. This March start date is still several months BEFORE the Trump trial is currently scheduled to begin in May the Southern District of Florida.

By postponing Trump’s trial on the basis of time constraints, Judge Cannon, a Trump appointee, appears poised to deliver to Trump what he truly wants — a start date that directly coincides with the late-summer, early-fall final stretch of the 2024 Presidential Election. Perhaps the best final say on this issue should come from Judge Chutkan, who was more than capable of issuing a start date for Trump’s trial in her own Court that was well before the election:

"What the effects on the political campaign are, are not before me and will not influence me here. This is a criminal trial-brought at the time the prosecution was ready to bring charges. I don't have any control over that. I cannot and will not factor in my decisions on whether it will effect a political campaign on either side."