Courts & Litigation Criminal Justice & the Rule of Law

Judge Cannon Holds a Hearing

Anna Bower
Wednesday, July 19, 2023, 5:21 PM
The much criticized judge presiding in the Mar-a-Lago case holds a scheduling conference, and the parties spar over a reasonable trial date.
Alto Lee Adams, Sr. U.S. Courthouse in Ft. Pierce, July 18, 2023. (Photo courtesy of Anna Bower)

Published by The Lawfare Institute
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It’s Tuesday afternoon, and I’m seated among a throng of spectators in a courtroom at the Alto Lee Adams, Sr. federal courthouse in Fort Pierce, Florida. 

We sardines packed into the only two rows of seats in the gallery have collectively traveled thousands of miles for the chance to observe a routine trial scheduling conference that is set to take place at 2 p.m.

If this were any other case, such a hearing would play out before a mostly empty courtroom. 

But this isn’t just any other case.  It’s the first pretrial hearing in the Justice Department’s criminal case against former President Trump and his “body man,” Walt Nauta. 

And on the agenda is an issue that could very well alter the course of the next presidential election: When will the front-runner for the Republican presidential nomination face trial by the federal government he used to run?

Not on the agenda, but an urgent matter for all the press present: Can we please hold the trial, whenever it happens, in a courtroom with more seats?

The potentially consequential nature of the trial’s timing is not the only reason why media observers have flocked to Fort Pierce, where the courthouse is inadequate to hold them and there’s not enough hotel rooms for everyone to stay. It also has something to do with the judge. Judge Aileen Cannon, the federal district court judge who last year grossly bungled Trump’s efforts to get the judiciary to interfere in the Mar-a-Lago investigation, is set to preside for the first time since her ill-fated intervention last year. 

Outside of the court, for the rest of the world, today is all about the target letter Trump has announced he received. But inside the court, we’re talking trial dates and nerding out on the Classified Information Procedures Act (CIPA), and Judge Cannon is the star of the show.

It is just after 2 p.m. when the bailiff shouts “All rise!” and the judge takes her seat behind the bench, resplendent in her black robes, judicial authority emanating from her very being. “The Honorable Aileen Cannon presiding.”

Cannon kicks things off by explaining why we’re here: to make a schedule regarding classified discovery in compliance with Section 2 of CIPA and, at the very least, to set a “partial” pretrial schedule. 

To that end, Cannon continues, there are two relevant issues pending before the court. The first is the question of the trial’s timing. The government wants to go to trial as soon as Dec. 11, while the defense team has requested an indefinite delay past the 2024 presidential election. Cannon says she has reviewed the filings and is prepared to hear arguments on the matter. 

The second pending issue is a motion for a protective order regarding classified discovery, which was filed yesterday by the Justice Department. 

With these initial remarks behind her, Cannon directs the government to provide an “overarching” report regarding the volume and scope of the evidence turned over to the defense team thus far. At this, Jay Bratt of the National Security Division hurries to the lectern from the table where he sits alongside his Justice Department colleagues. 

To start, Bratt explains that the government has made two productions of unclassified evidence. The first production, he says, contains more that 800,000 pages of documents, significant portions of which are “non-content” email headers and footers. A small subset—about 4,500 pages—are “key documents” from search warrants, grand jury testimony, and CCTV footage. The second production, meanwhile, comprises 300,000 pages. Those pages include evidence obtained from Secret Service emails, three devices that were provided “voluntarily,” and two of Nauta’s devices. 

Bratt says that prosecutors expect to produce additional evidence extracted from Nauta’s cell phone in the coming weeks. As he tells it, the government was initially unable to conduct a “forensic” search of Nauta’s phone and, as a result, it could access only a subset of its data. But the department is currently going through the process of completing and producing evidence obtained from a more thorough search, he says. 

At this point, Cannon interjects: “Did I hear one million pages correctly?” she asks. Bratt, responding in the affirmative, reiterates that the “key” documents provided by the government amount to only about 4,500 pages. 

Bratt then turns to video evidence. The surveillance footage, he says, “runs over a nine-month period.” While he doesn’t know the precise running time of the video evidence, he notes that the cameras at Mar-a-Lago were not “constantly running” and that the Trump Organization did not retain all of the footage from that period. 

As Bratt finishes this summation, Cannon directs his attention to the matter of the classified discovery. Is the government’s production of classified evidence contingent on the issuance of a protective order pursuant to Section 3 of CIPA? 

Yes, Bratt replies. Once a protective order is in place, the prosecution is prepared to begin production of 1,545 pages of classified evidence. While defense attorneys can receive some classified information with interim security clearance, documents with a “higher classification level” will be turned over only after defense attorney receive full security clearance. 

Cannon observes that she hasn’t yet seen any objections from defense counsel with respect to the proposed terms of the protective order filed on Monday by the special counsel’s office. Did the government make meaningful efforts to confer with defense counsel, as required under the local rules?

Bratt explains that prosecutors provided defense attorneys with the proposed order last week. They made efforts to discuss the proposal with defense counsel on Friday but were told that defense counsel would be unavailable until the following week, he says. 

Cannon, apparently unsatisfied by this answer, snaps at Bratt in response: “Alright, so you tried conferring on a Friday before filing on a Monday on something that’s quite important,” she says. 

Moving on, she turns to the government’s motion for a continuance. Bratt, who appears relieved to be out of the hot seat, shuffles away from the lectern as his colleague, David Harbach of the special counsel’s office, jumps up to address the matter. 

Harbach begins by addressing a few “framing issues” in the defense team’s opposition to the government’s proposed December trial date. The defense, he says, has framed that request as the government seeking an expedited trial. “They have inverted the analysis,” he continues. In the government’s view, a speedy trial need not be justified; it is a deviation from a speedy trial that requires justification. 

Second, he points out that the defense takes the view that Trump should be “treated differently” because he is running for president. “He should be treated like everyone else,” Harbach insists. “Mr. Trump is not the President. He is a private citizen who has been indicted by a grand jury in this district.” In that respect, Harbach contends, Trump should be treated just like any other “busy defendant” with a pending federal criminal trial. He doesn’t add, though he might have, that Trump does not have to run for president, and that by the logic of his brief, any defendant could force a years-long delay of a criminal trial merely by declaring his candidacy for the presidency.

Finally, Harbach urges Cannon not to conflate the “public interest” as Trump defines it with the “public interest” as the Speedy Trial Act defines it. While he recognizes that Cannon has considerable discretion to set a trial date under the act, he suggests that it would be “unwise” to grant Trump and Nauta’s request for an indefinite deferral of their trial date. 

Now, however, Cannon chimes in to ask about one of the factors courts consider when deciding whether to grant a motion for a continuance under the Speedy Trial Act: whether the case is “unusual” or “complex.” She wants to know if the government considers this a “complex” case. 

“No, Your Honor,” Harbach replies. He points out that the case involves only two defendants and will not raise “novel” questions of law. Pushing back on this, Cannon notes that she “looked around” to see if the Justice Department had ever objected to a “complex” designation for a CIPA case. She couldn’t find any, she says. 

Harbach replies that this case involves “straightforward” theories of liability. “In our view, it is standard fare as far as cases go,” he says. While acknowledging that defense counsel intends to raise purportedly “novel” questions of law concerning the intersection of the Presidential Records Act and federal criminal law, Harbach says there is “no justification” for the merits of that view. And he reminds Cannon that Trump’s counsel already briefed the court on a variation of that argument during proceedings related to his request for a special master last year. 

After announcing that those are all the remarks he’d like to make for now, Harbach treads away from the lectern and Trump’s counsel, Todd Blanche, rises from the table at which he is sitting alongside his co-counsel, Chris Kise. 

Blanche starts by expounding on the “tremendous” amount of discovery produced by the special counsel’s office to date. “As of this morning, there’s 1186 days of footage that we have uploaded thus far,” he claims. 

What’s more, he says, the government “just yesterday” produced more than 450 gigabytes of data to defense counsel. Though the special counsel’s office contends that many of the documents provided contain “non-content” headers and footers, Blanche insists that he must review all the documents to ensure the accuracy of that representation. Given the volume of discovery, he thinks the government’s trial schedule is “pretty disingenuous.” 

In response, Cannon says she can “appreciate” that additional time may be necessary. “But we need to set a schedule,” she continues. The defense motion does not suggest anything “concrete,” she observes. 

At this, Blanche insists that there is “no meaningful way” the defense could prepare motions ahead of the government’s requested trial date. There are, he suggests, several motions that the defense will likely file ahead of the trial that have nothing to do with the Presidential Records Act. There are, for example, potential issues related to attorney-client privilege given that a key potential witness in the case is “the President’s former lawyer.” What’s more, he says, the Justice Department Manual sets out a policy against grand jury presentation in a location where venue does not lie. Because the special counsel used a grand jury in Washington, D.C., for several months before ultimately indicting in Florida, he expects there could be a forthcoming motion related to “abuse of grand jury process.” But these motions, he explains, require a careful review of the voluminous discovery in the case. 

Pressing on, Blanche then announces that he “very much disagrees” with Harbach’s contention that Cannon should treat Trump “like any other defendant.” Trump is running for president, and he’s being prosecuted by the administration of the guy he’s running against, he asserts. It would be “intellectually dishonest” for the government to suggest that Trump is like any other defendant. 

Cannon again prods Blanche to be more specific about setting deadlines. “How much time do you need to do an initial triage of discovery?” she presses. Blanche replies that the defense would need until “early December” to review classified discovery in the case. 

“Alright,” Judge Cannon says. 

She then pivots to a different subject: Trump’s trial schedule for his criminal case in New York on state charges related to falsification of business records. Noting that the trial is currently scheduled for March 2024, she asks if that is a “firm date.” “Will it really go in March?” she queries.

Blanche, in turn, says he believes the New York trial really will be held in March, likely over a period of three weeks. By contrast, he adds, this case could be a “six or seven week trial.” That’s a significant amount of time that the court must consider in setting a schedule, he contends. 

Blanche walks back to his seat as his co-counsel, Kise, jumps up to make a few additional points. Focusing on the extensive publicity surrounding the case ahead of the 2024 election, Kise urges the court to “recognize the reality” that such publicity would “find its way into the jury pool” and infect Trump’s ability to receive a fair trial. 

At this, Cannon interjects: “Won’t the media scrutiny around the case continue even after the election?” Kise replies that it won’t be “as intense.” Judge Cannon follows up: “So your position is that there can be no trial until after the election?” After Kise affirms that is his position, Cannon attempts to steer him away from the presidential election talk. “It seems to me that we should focus on factors under the Speedy Trial Act,” she says. 

Taking this cue, Kise expounds on further circumstances that could impact defense counsel’s ability to adequately prepare Trump’s defense. In addition to the previously scheduled New York trial, he says that he expects “there are other proceedings we’re going to be involved with.” He points out that his client recently received a target letter from Special Counsel Jack Smith indicating that charges related to the Jan. 6 investigation could be forthcoming. What’s more, he says, it’s possible there could be additional charges in this case as well. “We don’t know if there will be superseding indictments in this case, but the fact that the government continues to send out subpoenas suggests there could be.” 

After Kise finishes his remarks, Stanley Woodward, counsel for Walt Nauta, pops up to make a few points. After reiterating much of what Blanche and Kise previously argued, Woodward complains that the government has not yet turned over all the evidence extracted from his client’s phone. “They seized my client’s phone in November but they’re telling you today that they can’t produce all the discovery,” he tells Cannon. He insists that he needs to review all of that discovery in order to advise his client whether to “sever” his case from Trump’s. And, given the volume and nature of the discovery in this case, he would suggest that Cannon enter an order for defense counsel to return to court in 30 to 45 days for another status hearing “to tell the court where we’re at.”

For her part, Cannon asks if Woodward is aware of any other CIPA case that has not been deemed “unusually complex” by the Justice Department. 

“No,” Woodward says flatly.  In fact, he says, he tried a case last week that involved “two hours” of video evidence, which the Justice Department deemed “complex.” “How can they now say that this case involving classified documents isn’t?”

Now Harbach pops back up from his seat to counter the defense team’s claims. Blanche’s claim that Trump is being prosecuted by a political opponent is “flat out false” he says. Special Counsel Jack Smith, he explains, was appointed to remove political considerations from the process. Yet as Harbach further hits back at Blanche and Kise’s claims regarding the impact of publicity ahead of the election, Cannon stops him. “I think we should stick to the Speedy Trial Act factors,” she asserts.  

Now Bratt is back up at the lectern to rebut more assertions by the defense. First, Bratt notes that there are other cases involving classified documents that have gone to trial within a year. He references a case called Mallory, which proceeded to trial within 11 months. Here, Bratt says, one could expect this case to proceed even more quickly because the government was ready to produce discovery “from the outset.” The only exception to that readiness was the delay in producing evidence extracted from Nauta’s phone. But the reason for the delay, he says, is that the government needed “special software” to complete a thorough search, and that “took a few months to acquire.”  

Unwilling to let Harbach and Bratt have the last word, Blanche pops back up to request that Cannon allow the parties to return to court in November to reassess the trial schedule. However, he continues, if Cannon feels compelled to set a trial date, he would ask that she set one after the November 2024 election. 

“I’d like to wrap this up,” Cannon declares. Before doing so, she announces that she intends to enter an order denying the government’s motion for a protective order because prosecutors did not “meaningfully confer” with defense counsel ahead of filling. However, she explains, the denial is “without prejudice,” which means that the government can refile its motion with the court once it confers with defense counsel. 

As for the trial date, Cannon defers a ruling. “I will issue a written order promptly following this hearing,” she says. 

And with that, the first hearing in the classified documents case—and Judge Cannon’s debut—is adjourned. 

Anna Bower is Lawfare’s Legal Fellow and Courts Correspondent. Anna holds a Bachelor of Laws from the University of Cambridge and a Juris Doctorate from Harvard Law School. She joined Lawfare as a recipient of Harvard’s Sumner M. Redstone Fellowship in Public Service. Prior to law school, Anna worked as a judicial assistant for a Superior Court judge in the Northeastern Judicial Circuit of Georgia. She also previously worked as a Fulbright Fellow at Anadolu University in Eskişehir, Turkey. A native of Georgia, Anna is based in Atlanta and Washington, D.C.

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