By Janice Hisle
A federal judge soon must make at least two key decisions that will set the stage for the historic Florida classified documents case against former President Donald Trump and his aide.
U.S. District Judge Aileen Cannon held her first pretrial hearing in the case on July 18 in Fort Pierce, Florida. After listening to lawyers’ arguments about possible trial dates for about two hours, the judge said she would issue a written decision “promptly,” The Associated Press reported.
Later, Judge Cannon will also be faced with a particularly pivotal issue at the heart of the allegations against Mr. Trump: How classified information will be allowed to be shared as the case unfolds.
The former president and co-defendant Walt Nauta have pleaded not guilty to charges related to their alleged mishandling of classified documents. The FBI seized many such records from Mr. Trump’s Florida residence in August 2022. Both defendants appeared before another judge in a much-publicized arraignment in Miami last month.
Prosecutors requested that Judge Cannon set the trial to begin on Dec. 11.
But Mr. Trump’s lawyers want the judge to postpone the trial until sometime after the presidential election, Nov. 5, 2024. They argue that they need more time to prepare for the extraordinarily complex case. They also say they doubt that their client can get a fair trial in advance of the election.
Effect of Candidacy Debated
Prosecutors, however, dispute the complexity of the case, the timeline of which goes back to January 2021, when Mr. Trump took the records with him as he left the White House. Prosecutors also argue that Mr. Trump’s presidential run shouldn’t affect the legal process.
However, Mr. Trump asserts that he is being targeted for prosecution precisely because he is running a promising campaign for reelection to the office he held from 2017-21. He is the current frontrunner for the Republican presidential nomination.
President Joe Biden, the leading Democrat for his party’s 2024 presidential nomination, remains under investigation for possessing classified records during his tenure as both vice president and a U.S. senator. Mr. Trump alleges that Mr. Biden and other Democrats have “weaponized” the criminal justice system against him. But Mr. Biden has denied trying to influence whether Special Counsel Jack Smith would pursue charges against Mr. Trump.
Prior to the Florida federal case, Mr. Trump was indicted on state business records charges in New York. On July 18, Mr. Trump said he was notified by Mr. Smith’s office that he is the target of an investigation concerning his efforts in disputing Mr. Biden’s 2020 election win, suggesting that an indictment may soon be issued. The former president may also be indicted in a Georgia investigation into the same issue.
Although neither defendant in the Florida records case had been expected to appear for the pretrial hearing, Mr. Nauta did attend. But Mr. Trump was instead headed to Iowa for a previously planned town hall forum moderated by Fox News host Sean Hannity; that afternoon event was recorded for a broadcast scheduled to air hours several later, at 9 p.m. ET on July 18.
Protective Order Request
Another key aspect of the Florida case involves the prosecution’s written request for a protective order over the use of classified information.
Under the proposed order that prosecutors filed on July 17 (pdf), the defendants would be allowed to disclose classified information to their attorneys solely for the purpose of preparing their defense.
But the order would put special conditions on such information that defense lawyers are permitted to disclose to Mr. Nauta and Mr. Trump.
If approved, the order would apply to “all pre-trial, trial, post-trial, and appellate matters concerning classified information in this case.” That information includes “any document, recording, or information” that any Executive Branch agency classified as confidential, secret, top secret, “formerly restricted data,” or “sensitive compartmented information,” the document states.
It would also include “verbal or other unwritten or unrecorded information known to the defendants or the defense team.”
In the document, prosecutors list more than 30 different types of information-storage media that the order should cover, even encompassing antiquated “telegrams” and “typewriter ribbons,” along with computer-era devices such as thumb drives.
Further, under the prosecution’s proposed order, “information that is classified that also appears in the public domain is not thereby automatically declassified.” It must have been declared unclassified by “an official statement by a U.S. Government Executive Branch official” who possesses declassification authority.
Judge’s Other Rulings
In another recent action in the case, Judge Cannon refused to allow federal prosecutors to seal a list of 84 prosecution witnesses. Prosecutors wanted to prevent Mr. Trump from communicating with those people about the case. But Judge Cannon, in refusing to grant prosecutors’ request, said they gave no justification for withholding the names from public view. The judge also said prosecutors failed to explain “why partial sealing, redaction, or means other than sealing are unavailable or unsatisfactory.”
Judge Cannon came under fire almost immediately when authorities revealed that she had been assigned to the Florida criminal case against Trump.
The former president had appointed Judge Cannon to the federal bench while he was in office, and critics point to her past controversial ruling in a separate but related aspect of the case.
Last year, after Mr. Trump’s lawyers filed a lawsuit over the FBI search of his home, Judge Cannon granted their request to appoint a “special master” who was tasked with weeding out records that were covered by executive privilege, attorney-client privilege, or were otherwise exempt from the Department of Justice’s probe of the classified documents.
However, the special master’s work ended late last year after an appeals court ruled that Judge Cannon lacked the authority to appoint such an independent reviewer.
The appellate judges said they were unable to “write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant.”
The Associated Press contributed to this report.