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On Nov. 1, U.S. District Judge Aileen Cannon held a hearing in the Mar-a-Lago case on motions filed by the defense for a revised pretrial and trial schedule. What follows is a dispatch on the proceedings based on a transcript obtained by Lawfare.
Jay Bratt, David Harbach, John Pellettieri, and Michael Thakur appeared to represent the government.
Todd Blanche and Emily Bove were in the courtroom and Chris Kise called in from New York to represent defendant Donald Trump.
Representing Waltine Nauta were Stanley Woodward and Sasha Dadan, and representing Carlos De Oliveira were John Irving and Donnie Murell.
Judge Cannon begins the hearing by reviewing the current trial and pretrial schedule; she then turns to the revised trial and pretrial schedule proposed by Trump and adopted by Nauta and De Oliveira. The two motions the hearing was called to discuss are the defense’s request that the court extend the deadline for discovery requests and motions to compel discovery, as well as a request for a revised litigation schedule for litigation under Section 4 of the Classified Information Procedures Act (CIPA).
Cannon turns to Blanche for a presentation of the relevant motions and identifies three distinct issues raised: discovery issues, motions to compel, and logistical concerns. Blanche begins with the discovery issues, calling the unclassified discovery “extraordinarily complicated and voluminous.” He specifically points to the CCTV footage turned over by the government as particularly difficult to review. Cannon asks how much footage the defense had to review, to which Blanche responds that there are differences of views on the length of the material. The defense’s understanding is that while the footage is from a nine-month period, there were locations that had multiple cameras filming—the result of which is that there is a total of 10 years of footage.
Blanche then brings up the issues he and Trump’s other defense attorneys have faced when accessing classified discovery, including that it had been accessible only in “a location that is very difficult to work in.”
Cannon asks when Blanche received all of the classified discovery, to which he answers Oct. 17. He adds that given the other ongoing trials and the fact that these were “very dense review materials,” the defense needs more time to go through all the discovery the special counsel’s office has turned over.
Cannon then moves on to prudential search reviews and classification reviews. Blanche tells the judge that the defense has received some information regarding prudential search reviews but that there are still some outstanding materials it needs to receive regarding classification review. Blanche then points specifically to the position of the special counsel’s office that the National Archives and Records Administration (NARA) is not part of the prosecution and that the government has therefore not turned NARA documentation over to the defense; he says the defense will pursue a motion to compel on this point.
Blanche tells Cannon that the motion to compel will focus on communication between the special counsel’s office and NARA, the White House, and other executive branch intelligence agencies. He adds that these motions would need to be ruled on before Section 4 litigation begins, hence, the requested revision of the pretrial schedule. Blanche tells Cannon that “it, in our view, is extraordinarily inefficient to have a Section 4 submission tomorrow.” This is because there is still classified discovery that has not been reviewed that will be a part of this litigation as well as “the information we are requesting from the Special Counsel, from NARA.”
He emphasizes that if Section 4 litigation occurs before the defense file motions to compel, the defense will have to “do it over again after we review the additional materials that we were entitled to in the first place.” In response to questioning from Cannon, Blanche asserts that the defense should be able to file motions to compel within two weeks of meeting with the prosecution. But he also brings up deadlines in the D.C. case as a possible complicating factor.
Cannon then moves to address logistical concerns raised in the two motions by the defense. “Everything has changed,” since the indictment, says Blanche, referring to the superseding indictment filed in the Mar-a-Lago case and the additional federal indictment filed in the Jan. 6 case in D.C.
“There is not a single part of your Honor's schedule that is not adversely affected by the D.C. schedule.”
Cannon requests clarification on how the D.C. trial will interfere with the Mar-a-Lago trial. Blanche responds that the D.C. trial may run until the start of this trial. The D.C. trial begins on March 4, after all, and Blanche tells Cannon that the defense believes that trial will take two and a half months.
Ending his presentation, Blanche emphasizes how the other trials in which Trump is currently embroiled are impacting the defense’s ability to prepare for this case. This includes a “compressed schedule” in D.C. and a “very aggressive schedule” in this case.
Cannon responds that “there is a lot of work and clearly a lot of moving parts” in balancing multiple cases.
She then moves to Stanley Woodward, Nauta’s attorney, for his supplemental presentation.
Woodward brings up his team’s lack of access to the classified documents before Cannon asks about unclassified discovery. He then discusses the logistical hurdles his team is facing in accessing classified discovery before moving to unclassified discovery. Woodward tells Cannon that he still needs to be trained in how to access the new sensitive compartmented information facility (SCIF) where he could begin to review the classified material and that he wants to discuss certain evidence with his client—such as Nauta’s cell phone—but cannot because the forensic copy is in the SCIF. While he does have access to an unclassified version of the extraction of the cell phone, he does not know what is missing from the classified version because of the logistical challenges in accessing the SCIF.
Cannon recognizes that because there is no SCIF in this division, there have been logistical hurdles that must be overcome in accessing classified information.
At this point, Woodward moves on to the logistical challenges in reviewing unclassified discovery, focusing on the issues surrounding accessing the CCTV footage. He tells Cannon that even before reviewing the footage, it will take hours to extract the folders from their zipped files and require “extensive real person power.”
Cannon inquires whether Woodward is planning to file any motions to compel, to which he responds with uncertainty. He assumes that there will be motions, but because of the volume of discovery that still needs to be reviewed, he does not know for certain what will be included.
The judge then moves to De Oliveira’s counsel, John Irving, to hear his reasoning for a time extension and revised trial and pretrial schedule. Irving starts his presentation by arguing that because his client was arraigned and charged later than the other two defendants, De Oliveira’s defense will not ”be able to get through a lot of this material” in the current pretrial schedule. He tells the judge that “I'm not even close to getting through classified or unclassified material in order to know whether or not there is a need to file a motion to compel.”
Irving commends the government for its responsiveness and assistance, including providing laptops that should help with accessing and reviewing the CCTV footage. He adds that the defense believes it will need to look at “far more video” than the government believes will be necessary, and this will take substantially more time. Irving ends his presentation by reiterating that his client was arraigned after the other two defendants, so he received clearance to review classified discovery after the other attorneys, on Oct. 11. The other defense counsel for De Oliveira received clearance only today.
After Irving’s presentation, Cannon moves to Chris Kise, one of Trump’s attorneys calling in from New York—where he is representing Trump in an ongoing civil fraud case. Kise’s statement focuses on how the multiple concurrent trials will present challenges to the defense, especially since many of the lawyers overlap in these cases. Kise tells Cannon that he has not been able to travel to Miami to review the classified discovery with Blanche in the SCIF because of the other ongoing trial.
After the defense counsel finishes its presentation, Cannon turns to the government for its response.
Jay Bratt is representing the government and begins his statement by informing the judge that the defense’s goal in this case is the same as in the D.C.; the purpose is to delay the trial for as long as possible. He talks about why the D.C. trial schedule should not impact this trial, at which point he and Cannon have a back and forth on how the concurrent cases could impact each other.
“The Court really cannot let or should not let the D.C. trial drive the schedule here,” Bratt says.
Cannon responds to this statement by questioning whether Bratt is aware of any defendant facing indictment in multiple jurisdictions where the Justice Department has taken the position that there should be no consideration of that fact.
Bratt responds that “they could collide. We don't know that that's going to happen.”
Cannon tells Bratt to “elaborate on how you don't know that because from what I’m hearing, the schedule is looking like it is going to consume March and April, possibly going into May, and that’s to say nothing of trial prep in this case.… So I’m not quite seeing, in your position, a level of understanding to these realities.”
Bratt responds that since the defense has moved to dismiss the D.C. case and those proceedings could be stayed, there is no certainty on when that trial will begin. He also pushes back on Blanche’s earlier statements, saying that Blanche and his firm became involved in the D.C. case knowing it was already representing Trump in this case.
“Things could happen with the D.C. case that would make going forward on May 20th, 2024, in this case not feasible. That may happen and we can address that, at that time, but we should be moving forward in this case,” he says.
Cannon agrees that this case should be moving forward and requests that Bratt provide a rundown of the quantity of unclassified discovery and classified discovery turned over to the defense.
Bratt tells her that there are 1.3 million pages of unclassified discovery and 60 terabytes of data of CCTV footage. When asked about how that translates to a temporal perspective, Bratt says that he disagrees with the defense’s assertion that it is 10 years of footage. He contends it is likely less than five years. He says that the government provided the defense with key dates to review and that the key time frame to review is between May and August 2022, pushing back on the defense’s argument that it needs more time, saying that “they have had this material for a very long time.”
He confirms to Cannon that this is the full scope of the unclassified discovery, with the bulk of it having been turned over to the defense in July. Bratt then moves on to classified discovery, telling her that the prosecution handed 2,500 pages over on Sept. 13 and an additional 3,000 pages were turned over the following weeks. After Cannon asks about the classified information on disks, Bratt says that the information on the disks is duplicates of other classified material, including hard-copy classified documents the defense has access to in the SCIF. It also contains audio of classified interviews, for which the defense has transcripts, and other Rule 16 material.
Cannon tells Bratt that even if there is no unique discovery on the disks, “it still takes time to determine that it is duplicate.”
Bratt responds to Cannon, telling her that the government handed over cross-references of information on the disks and hard copies to the defense on Oct. 30. He also tells her that from the prosecution’s perspective, no further classified discovery needs to be reviewed before being turned over to the defense.
In a brief back and forth on prudential search requests, Bratt confirms that the government has conducted all the requests it believes appropriate, and he tells the judge that “the Defense doesn't get discovery on how we did discovery.”
Cannon then moves on to discovery related to law enforcement witnesses, asking Bratt if it has been produced and when. He responds that the government has provided material related to agents’ notes, and transcripts of agent testimony before the grand jury, and will hand over substantive and relevant agent communications once it decides which agents will be called as trial witnesses. Cannon asks Bratt when all of the classified discovery was available to the defense in the SCIF in this district—to which Bratt responds Oct. 17.
Moving on to the motion to compel, Bratt argues that motions to compel can be filed in tandem with the CIPA Section 4 litigation schedule: “We do not believe that the motion to compel litigation needs to be complete before they can file with the Court their theory of defense.”
Cannon tells Bratt that “one would have to review the relevant classified discovery in order to formulate a meaningful response.” He responds that he does not believe that Section 4 litigation needs to occur after motions to compel.
Bratt says that there is no constitutional right for the defense to view discovery before making a selective prosecution defense and that the defense can file motions to compel in tandem with Section 4 litigation.
Cannon now moves to the ex parte nature of Section 4 and asks Bratt his view on whether Section 4 litigation could be done on an attorneys’ eyes only basis. Bratt responds that the court has the discretion to decide, but his view is that it would be odd to give defense classified information that the government is seeking to redact, substitute, or delete.
She then questions Bratt on his statement in the briefing that nothing material has changed since the court set the trial date.
Bratt responds that there were some unforeseen difficulties with getting the SCIF set up that does require an adjustment to the CIPA schedule and that the government’s response was written in September, before these issues arose. He ends his statement by telling the court that there is no forensic image of Nauta’s phone in the SCIF and that there is a singular classified image that was extracted from the phone that is in SCIF. Bratt informs Cannon that he will confer with Woodward after the hearing to clarify this matter.
Cannon asks for final thoughts from the defense before ending the hearing.
Blanche asks to clarify a few statements and pushes back against Bratt’s description of what discovery is included on the disks, stating that three gigabytes of email accounts are additionally included. He states that the special counsel’s office has refused to tell the defense how the CCTV was reviewed, including what program was used. Blanche tells Cannon that he will be asking for a hearing on the ex parte nature of Section 4 litigation before telling her that the defense still requires information from the government on which witnesses will be testifying as to why a particular document is classified. He previews what is likely to be in his motions to compel, including correspondence leading to the intelligence community concluding whether a particular document is classified.
Before his final comments, Blanche addresses Bratt’s comments about the defense being associated with both the D.C. and Florida cases, saying that the comments are “extraordinarily unfair.” Blanche concludes on the complications the defense is anticipating facing given the multiple criminal trials Trump will be embroiled in next spring.
“So when the Special Counsel suggests to the Court that we should just assume the May date will go because all kinds of things that can happen, that’s very unfair to President Trump given what Mr. Kise mentioned about his current schedule, but imagine what that means for President Trump even when the AG trial is over, he starts January 1 having three criminal trials between March 4 and May 20,” says Blanche.
Cannon ends the hearing without making any rulings and informs the attorneys that she will “assess as best I can the adjustments to be made to the schedule, and enter an order as soon as possible to address these multiple moving parts.”
With that, the hearing is concluded.