In addition to the trial date itself, Cannon’s order scheduled a string of other key pretrial deadlines on matters that will shape the scope of the case — and may even determine whether the case reaches a jury at all.
Based on high-profile trials involving the same kinds of classified records, it seems doubtful that all aspects of Cannon’s schedule will stick. But here’s a look at how the next 10 months are likely to play out if Cannon, a Trump appointee with less than three years of experience on the bench, adheres to her plan.
Already underway: Initial discovery
The legal process known as discovery — in which the two sides exchange information — is already well underway. At this stage in the case, it’s chiefly a one-way street, with special counsel Jack Smith’s prosecutors turning over the bulk of their investigative file to lawyers for Trump and his co-defendant, Walt Nauta.
Prosecutors have already provided more than 1.1 million pages of unclassified emails and other documents to defense lawyers. In addition, the defense was given access to (but probably already had) nine months or 57 terabytes of CCTV recordings from Mar-a-Lago surveillance cameras and perhaps elsewhere.
This material will obviously take a long time for defense attorneys to go through. Indeed, that was one of their main arguments against proceeding with a trial this year.
Upcoming weeks: Hashing out procedures for classified evidence
Separately, prosecutors have asked Cannon to issue a so-called protective order governing the classified information at issue in the case. It would set rules about who can see the information and what sanctions will face anyone who violates it. The judge ruled that the prosecution’s motion, brought under the Classified Information Protection Act or CIPA (pronounced: SEE-pa), was premature because there wasn’t enough opportunity for the defense to weigh in but set a deadline next Thursday for prosecutors to re-file the motion.
There could be a scuffle here about how much access Trump should have to the information and under what conditions, particularly since he’s accused of treating it and other secrets cavalierly. But generally, if defendants in a criminal case ever had authorized access to the sensitive information in question as part of their work, they are permitted to review it again in the lead-up to trial.
The government is also expected to be working on security clearances for Trump and Nauta’s defense attorneys so they can see all the relevant records, including some that pertain to very sensitive “special access” programs requiring specific approval beyond a mere “top secret” clearance.
September 2023: Defense lawyers get classified documents
Cannon ordered the government to begin turning over classified information to the defense Sept. 7, 2023. That will include, at a minimum, the 31 specific documents that the indictment links to each of the 31 counts against Trump for willfully retaining national defense information. The government also will likely have to turn over other records, like analyses of the documents cited in the indictment, reports on potential damage caused by the disclosure and perhaps classified documents involved in other incidents not directly charged in the indictment but arguably relevant to the case.
Such information has to be stored in a sensitive compartmented information facility or SCIF (pronounced: skiff), which meets federal standards for physical security, logging access, eavesdropping and round-the-clock guards.
Prosecutors said last week that they planned to start putting some witness statements related to the case in a SCIF at the federal courthouse in Miami, but that the bulk of the classified materials would have to wait until Trump and Nauta’s lawyers have final clearances.
Cannon’s order Friday indicates that the use of the Miami SCIF may be temporary.
“This review will take place at a temporary location until sufficient security measures have been implemented on an expedited basis for placement at a final location,” she wrote, without elaborating. Her courthouse in Fort Pierce, Florida, is about a two-hour drive from Miami, so a closer SCIF would be helpful in case she or her clerks need to review or store some of the classified materials when preparing rulings or during trial.
October 2023: Disputes over any classified info being withheld
One early issue in handling the classified information related to Trump’s case will be whether the defense should be denied access to any such information relevant to the case.
Sometimes the government seeks to protect sensitive details, like the surveillance programs that gathered certain intelligence, by providing defense attorneys “substitute” information. This can involve deleting the name of a foreign country, for example, and replacing it with “Country A.”
Sometimes the proposed substitutions are more complicated, paraphrasing existing classified records by obscuring how or when the U.S. government became aware of some national-security-related development. In other cases, prosecutors essentially seek the judge’s blessing to withhold some information completely from the defense on grounds that it’s extraordinarily sensitive and wouldn’t be helpful to the defense anyway.
Defense attorneys naturally tend to object to having anything withheld from them but may brief the judge privately on defense theories to give her a better understanding of what kind of information could be helpful.
It’s unclear whether prosecutors will invoke this mechanism to try to keep information from the defense, but Cannon set a hearing for Oct. 17, 2023, to hash out any such disputes.
November 2023: Defense motions to throw out the case
The judge set Nov. 3, 2023, as the deadline for pretrial motions, largely expected to come from the defense. Some motions will likely seek to toss out individual counts from the 38-count indictment, while others may be aimed at getting the entire case dismissed.
Defense attorneys have already indicated that they plan to challenge Smith’s authority under the Constitution to bring the charges and prosecute the case. Such a motion is likely to argue that the special counsel is essentially a rogue prosecutor unsupervised by any presidentially-appointed and Senate-confirmed official.
Under the longstanding regulations Attorney General Merrick Garland invoked last November to name Smith, most Justice Department officials in the normal chain of command have no role in overseeing the special counsel’s inquiry. There is a requirement to notify Garland about major developments. The attorney general has the authority to countermand decisions he finds to be contrary to DOJ policy, and he retains the right to fire Smith under extraordinary circumstances or to revoke the regulations entirely.
Prosecutors have signaled they believe that’s sufficient oversight to make Smith a subordinate officer, albeit with substantial independence — an arrangement they say the Supreme Court blessed 50 years ago in connection with the Watergate investigation into President Richard Nixon.
Other motions could attack the constitutionality of the Espionage Act, the World War I-era law used to charge Trump with 31 counts of illegally hanging on to national defense secrets. Such a challenge is routinely brought in cases invoking that law, and scholars have long complained about the vagueness of aspects of the statute, but no court has ever ruled it unconstitutional.
Trump’s lawyers are also expected to file a motion claiming that he had the right under the Presidential Records Act to designate any record as personal and retain it and that no court can review his decisions on that score.
Trump and Nauta’s lawyers could also file motions seeking to suppress evidence in the case, including everything seized in the August 2022 FBI search of Mar-a-Lago, as well as documents and emails seized from other locations.
Defense lawyers also have a deadline of Nov. 17, 2023, to identify materials in the classified discovery that they want to introduce at trial.
December 2023: Crucial hearing on pretrial motions
Cannon set Dec. 11, 2023, as the first hearing date for the main pretrial motions. (Incidentally, that’s the same date that prosecutors unsuccessfully proposed for the start of the trial itself.) This could be one of the most pivotal hearings in the case. It’s even possible it could be the last hearing before Cannon if she chooses to throw out the charges.
While the exclusion of classified information from discovery should have been hashed out by this point, the judge set a Dec. 15, 2023, deadline for the government’s proposal for any substitutions in classified evidence to be presented to the jury. This could include requests to use the so-called silent witness rule — a mechanism where a witness and sometimes the jury see highly classified information but it isn’t shown to members of the press or the public.
January 2024: More battles over how to treat sensitive classified info
The defense’s response to the government’s Dec. 15 CIPA motion is due on Jan. 4, 2024, right after the New Year’s break. Expect the defense to protest much or all of what the government proposes and to argue that denying the public access to the evidence amounts to a closure of the trial.
“The Defendants believe there should simply be no ‘secret’ evidence, nor any facts concealed from public view relative to the prosecution of a leading Presidential candidate by his political opponent. Our democracy demands no less than full transparency,” lawyers for Trump and Nauta wrote in a court filing last week.
Cannon plans to hear arguments on these classified information issues on Jan. 16, 2024, one day after Iowa Republicans are planning to hold their caucuses in the presidential nominating contest.
February 2024: Another motions hearing
Cannon has scheduled a backup hearing on pretrial motions for Feb. 26, 2024, seeming to acknowledge that they are unlikely to all be filed by early November or to be argued at the December hearing.
March 2024: Sparring over ‘prior bad acts’
Prosecutors have the opportunity to ask to introduce evidence that doesn’t directly pertain to the 31 counts Trump faces of retaining national defense secrets or to the obstruction of justice charges, but which may prove “opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”
This is sometimes called “prior bad acts” evidence. Some of it is already in the indictment, like the claim that during a 2021 meeting at his Bedminster, N.J., golf club after leaving office, Trump showed writers working on a book a classified war plan related to Iran.
The two sides are also likely to jockey aggressively over other sorts of evidence or arguments that they may or may not want admitted at trial. Prosecutors are likely to ask for an order barring Trump’s defense from telling jurors that the case was brought for political reasons or from arguing legal issues, like the Presidential Records Act, that will likely have already been resolved by the judge.
Cannon set a deadline of March 20, 2024, for such motions. Just five days later, Trump is scheduled to go on trial in a New York state court for allegedly falsifying documents in connection with a hush-money scheme.
April 2024: Admissibility of evidence
The so-called motions in limine — which seek advance rulings about what will and won’t be admitted at trial — are set for hearing on April 17, 2024.
May 2024: The trial begins
Cannon has scheduled a May 14, 2024, hearing to address remaining issues about classified evidence or other matters related to the trial. And the trial itself is set to open May 20, 2024, in the federal courthouse at Fort Pierce.
Not on the timeline
Unsurprisingly, Cannon’s schedule makes no reference to the political calendar that seems to loom over both this case and the other trials Trump is facing in New York in the coming months. But a variety of legal issues that may come up prior to the trial also aren’t yet slotted in.
Among them are the procedures to be used to summon jurors, to screen them for potential bias and whether they’ll be sequestered during the trial.
There’s no mention of the possibility that news organizations will intervene to object to the handling of classified information or other aspects of the trial, including the possibility of a demand to allow live audio or video coverage. Cameras are typically not permitted in federal court — but Trump’s legal team is already signaling that they may seek to have the trial televised.
The schedule also doesn’t address the prospect that either side could file appeals or seek other relief from the Atlanta-based 11th Circuit Court of Appeals in the lead-up to Trump’s trial.
Prosecutors have the right to immediately appeal decisions the judge makes under CIPA, as well as pretrial decisions to exclude evidence. The defense generally lacks the right to appeal until after a trial and potential conviction.
However, if Trump wants to make an all-out push against rulings he disagrees with, he could file a special petition with the 11th Circuit asking them to step in and head off the trial or make changes he or his lawyers view as favorable to his defense.
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