Trump’s classified documents trial blown apart by Cannon

The facts of the case do not favor former president Donald Trump.

When he reluctantly left the White House in January 2021, it was rushed. His weeks-long insistence that he hadn’t lost and got to stay president meant that his team had less time to transition out of the building. He departed Jan. 20, taking boxes of souvenirs and documents with him to Florida. Other boxes went to a transition office in Virginia before being shipped to him at Mar-a-Lago.

The National Archives discovered that it was missing several records from his administration and sent a letter to Trump’s attorneys asking that they be returned. This triggered what followed: Trump personally picking through the material (per federal prosecutors) to send boxes back to Washington, the discovery by the Archives that some material was marked as classified, and a probe that determined that he probably had more classified material. After his attorneys gave Justice Department officials a package of documents in June 2022, attesting that it was everything Trump had, further investigation revealed that this wasn’t true. In August 2022, the FBI searched Mar-a-Lago, finding more than 100 additional marked documents.

The indictment obtained by special counsel Jack Smith included other elements - an alleged attempt to hide security-camera footage, movement of boxes just before federal investigators came, discussion of classified material with uncleared individuals - but the case largely centers on the documents. Of the indictments Trump faces, the case in Florida was often regarded as the most clear-cut.

And then it was assigned to Judge Aileen M. Cannon.

By the time a federal grand jury indicted Trump in June 2023, Cannon had already raised eyebrows for her handling of the Mar-a-Lago search. Cannon ordered that the material seized in the search be reviewed by a “special master,” a third party who could determine whether any material should be excluded from the investigation because it was covered by attorney-client privilege. And Cannon went further: Until the review was done, prosecutors couldn’t use the material to move their investigation forward.

That stipulation was quickly reversed by an appeals court. A few months later, the same court dismissed the special master in highly critical terms.

“All these arguments” offered by Trump’s attorneys for the special master, the ruling stated, “are a sideshow.” Yet Cannon accepted them. Legal experts speaking to The Washington Post and New York Times presented significant skepticism about Cannon’s actions.

The indictment was handed down. The random process of assigning it to a judge resulted in it landing, once again, in Cannon’s lap.

As the government and Trump’s team have jockeyed over pretrial motions and the determination of when the trial might begin, Cannon has repeatedly accommodated Trump’s position.

Prosecutors pushed for a December 2022 trial start date. Trump wanted it to begin later - ostensibly because his legal team needed time to review evidence, but clearly, in part, because it wanted to push the trial past the presidential election. Cannon opted for May 2024 but hinted even in November that she might push it out further.

Trump’s team wanted to argue in its defense that Trump was authorized to identify any documents he wanted as personal records. This is clearly not the case, but Cannon in mid-March ordered both sides to draft jury instructions that treated the argument as viable.

Then there was the debate over the Classified Information Procedures Act (CIPA), which covers the handling of classified material in criminal proceedings. Under Section 5 of CIPA, defendants have to inform the government about which documents they plan to use at trial. The deadline for doing so was originally set in mid-November.

Shortly before that deadline, Cannon pushed the deadline out, saying she would set a new one after hearings in early March. It wasn’t until early April, as Lawfare’s Roger Parloff has reported, that Cannon set a new deadline of May 9 - a bit before the June 17 date Trump’s team wanted but nearly six months after the original deadline. The May 20 trial start date, already wobbly, was about to topple over.

Then, on Tuesday, Cannon finally blew the whole thing apart. In a ruling outlining a new schedule, Cannon not only moved the Section 5 deadline to June 17 (as Trump’s team had originally sought) but she also pulled the trial start date indefinitely. In part, she wrote, it was because of “the myriad and interconnected pretrial and CIPA issues” - presumably including the CIPA issues that had been left unresolved for a half-year.

In the new order, she offered another accommodation for Trump’s team. In an April 22 filing, it argued that the “prosecution team” in this case should include “Agencies And Attorneys That Participated In The Investigation,” including, among others, the White House, National Archives and Secret Service. Should Cannon determine that to be the case, the special counsel’s office “has an affirmative obligation to collect and produce discoverable evidence in the possession of the entire prosecution team,” the filing argued.

Smith responded, arguing that the Trump team “seeks non-discoverable materials based on speculative, unsupported, and false theories of political bias and animus.” Looping in other parties, the filing read, relies on “a pervasively false narrative of the investigation’s origins.”

Cannon’s order Tuesday sets aside three days in late June specifically to consider this point.

Whether the trial occurs before or after the election is likely to matter politically. There’s no reason to think that a conviction of Trump on the Florida charges would result in a significant decline in his support. By kicking the trial out past the election, though, it does offer Trump a specific legal advantage: If he wins the presidency, he can delay or kill the prosecution entirely.

Trump is obviously cognizant that the prosecution being managed by Cannon is going his way. He has repeatedly excoriated the judge in his Manhattan trial, for example, as well as the judge overseeing his civil fraud case. His supporters on Truth Social - the social media echo chamber he created after being booted off Twitter in January 2021 - have echoed his disparagements.

Cannon gets different treatment in Trumpworld, where her rulings are generally hailed as uniquely wise. She’s been celebrated by adherents of the QAnon movement, given that a May 2018 post from the anonymous “Q” showed an image of a cannon titled “justice.jpg.” Trump has remained uncharacteristically mum.

Some of Cannon’s approach may be explained by inexperience. She has not been a judge for long. Her appointment (by Trump) came despite her having limited trial experience; she’d spent 14 days trying four criminal trials before being tapped for her current position. She also has reportedly seen two clerks resign in the past year.

If there were a judge who actively wanted to delay Trump’s Florida trial, though, it’s not clear what they might have done much differently.