On Tuesday, Judge Aileen Cannon of the Southern District of Florida said she simply does not know when Donald Trump will go on trial in her courtroom. Jack Smith, the special counsel, had Trump charged with thirty-two counts under the Espionage Act, for allegedly obtaining national security documents at Mar-a-Lago, and eight other counts of obstruction and making false statements. The trial had been tentatively set for May 20. Now, following Judge Cannon's order, prosecutors will have to wait for an update at a “state conference” hearing on July 22, which, as it happens, is four days after the Republican National Convention, where Trump he will almost certainly get his party's vote. formal presidential nomination, concludes in Milwaukee. cannon, in your order, said in effect that the whole business of the case has become too complicated to proceed sooner. Unfortunately, for many reasons, not all within Cannon's control, this may be true.
There were, Cannon said, “myriads and interconnected” unresolved issues and “new and difficult questions,” which made it “unwise” to proceed sooner. For Smith's team, these supposed mysteries could be boiled down to a couple of simple questions: Why can't Cannon move faster? Why doesn't Trump shut down, when he clearly wants delays for delays? (If Trump wins the election, it could kill the case.) “Every time the Court sets a new deadline in this case and tries to hold it toward trial, the defendants reflexively ask for a postponement,” prosecutors wrote in a presentation a few weeks ago. “This has to stop.”
That view, however, is too easy, even if Team Smith's frustration is understandable. Trump's motives may be obstructionist and his legal arguments often outrageous, but he also has non-frivolous material to work with. There are three other criminal cases pending against him that, in different ways, pose challenges for him. Any trial involving classified evidence, as this one does, has an additional layer of complexity, governed by the Classified Information Procedures Act, or CIPA, and there are built-in problems with the Espionage Act itself. It is not an easy law to decipher, and the fact that the accused is a former president makes it less so. And Cannon, who was appointed by Trump and has issued a series of questionable rulings, is relatively new to the bench.
However, the complications build on each other. For example, Trump and his lawyers can only examine certain evidence at a sensitive compartmentalized information facility, or SCIF. (In addition to delays, national security judgments involve a lot of acronyms.) SCIF in question is in Florida; Trump is currently on trial in New Yorkfor allegedly falsifying business records, which he denies. He has argued that one of his lawyers, Emil Bove, is a crucial part of his legal team in both cases. (Bove and other lawyers obtained security clearances to work with the evidence.) Cannon, by order, moved a key CIPA-related deadline from this Thursday until June 17.
On Tuesday, the same day Cannon issued his order about the timing of the Florida trial, adult film actor Stormy Daniels took the stand in New York to talk about having sex with Trump in a celebrity golf tournament, including its fun. to the brand of shampoo he saw in his hotel bathroom (Perth Plus). To put it mildly, their revelations do not measure up to the facts of the Florida case, in which the interesting items allegedly spotted in a bathroom (this time at Mar-a-Lago) were boxes of sensitive documents.
The New York trial had moved forward first because Trump's other trials were delayed for various reasons; with delays, there is also a bit of a negative feedback loop. Jack Smith's other impeachment against Trump, in Washington, DC, which is related to Jan. 6, has been stalled because Trump's claim that he is immune from prosecution for his “official acts” while the president has arrived in the Supreme Court. Another delay in the case filed in Georgia by the Fulton County DA, Fanny Willis— in which Trump is accused of conspiring to overturn that state's election results — emerged Wednesday, when the Georgia Court of Appeals said it would allow Trump and other defendants to re-argue that Willis he should be disqualified, because he had one romantic relationship with a lawyer he hired to handle Trump's prosecution. And so New York came online, and now, in turn, it's contributing to the delay in Florida.
By the time of the July status conference, the Supreme Court should have, in any case, ruled on the case of immunity, Trump v. United States. Judging by oral arguments at the end of April, the judges likely won't give Trump everything he wants, but they seem willing, at the very least, to require further proceedings that will delay DC's trial. It may not be obvious that such a decision would affect the Florida trial; the documents in question were stored at Mar-a-Lago long after Trump left office. But Trump has argued: in a motion filed in February, that all Espionage Act charges stem from his alleged initial decision, in his final days as president, to “cause the records to be moved from the White House to Mar-a-Lago,” and that this decision was an immunized official act. . Cannon may be pausing to see if the Supreme Court somehow agrees.
The most difficult aspect of the Florida case, however, may be the Espionage Act itself. Getting a conviction isn't as simple as proving that the Mar-a-Lago documents were marked classified, because the relevant part of the Espionage Act doesn't actually mention classification. (Trump has been indicted under Section 793(e); there is no allegation that he committed espionage in the vernacular sense of espionage.) Indeed, while there have been some revisions over the years, most of the Espionage Act dates back to 1917, before there was a classification system, which Truman introduced by executive order. Instead, the act criminalizes the “unauthorized” possession of information “related to national defense,” now known as national defense information, or NDI. This is, needless to say, a term that encompasses a lot. There is case law on what NDI can mean, which has developed over the decades, often with reference to classification, although confusingly, NDI need not be designated classified, and things with classification stamp are sometimes not considered NDI. but the Supreme Court has not addressed the issue definitively since 1941, in Gorin v. And that decision was not a model of clarity: it described “national defense” as “a generic concept with broad connotations.” (I wrote about the complexities of the Espionage Act in a longer piece in 2023.)
Partly as a result of the vagueness of the act, the Justice Department does not prosecute all the Espionage Act cases that they can. If that were the case, many journalists, who often publish classified information, would be in prison. In the case of Joe Biden, who kept the documents marked classified at his home and office in Delaware, the decision not to prosecute, according to Robert Hur, the special counsel in that case, turned on another mandatory element of the law: the “voluntariness”. (My colleague Jeannie Suk Gersen has done this written on Hur's reasoning.)
There have been, at least, many Espionage Act cases that Cannon can look at when considering, say, whether the Mar-a-Lago documents are NDI, but Trump's lawyers have focused on another term fog: “unauthorized”. What does this mean when it comes to former presidents, who often continue to have access to classified information in one form or another? Broadly speaking, Trump argues that he was authorized to retain the documents under the Presidential Records Act, which allows outgoing presidents to designate certain documents as “personal records,” while requiring the release of presidential records.
There is clearly some Trumpian nonsense here; a document on nuclear secrets, which prosecutors allege Trump had, doesn't sound very personal. Worse, it claims that no court can ever second-guess personal designation: If a president says something is personal, it is. According to this logic, the PRA itself would be meaningless, because a president could issue a general subpoena order all in the personal Oval Office. But prosecutors' contention — that the PRA is irrelevant to the Espionage Act and that the executive order on the classification system should provide the answers Cannon needs — also has holes in it. For example, what does the law say if something that has traditionally been recognized as a president's personal record (perhaps diaries, like those carried by Ronald Reagan) too Does it contain classified or national defense information? Is it authorized? How do the laws interact? To be clear, a PRA-based defense probably wouldn't (or shouldn't) ultimately help Trump if the records aren't plausibly personal; but it's another legal box to check, with the potential for further delay.
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