It Is Inexcusable How Judge Cannon
Is Delaying the Trump Documents Case
May 18, 2024
By Brian Greer
Mr. Greer was a lawyer in the Central
Intelligence Agency’s Office of General Counsel from 2010 to 2018.
The
task before Judge Aileen Cannon, who is presiding over the classified documents
case of Donald Trump, is not easy. She must protect Mr. Trump’s constitutional
rights while also ensuring the prompt and fair administration of justice.
Still,
it is inexcusable that she is utterly failing to keep the case moving along in
a fair but timely manner. And unfortunately, there isn’t much that the special
counsel in the case, Jack Smith, can do about it.
While
working as an attorney in the C.I.A.’s Office of General Counsel, I developed
an expertise in Espionage Act prosecutions similar to the one pending against
Mr. Trump, who is accused of illegally taking classified state documents from
the White House after he left office and then obstructing the government’s
repeated efforts to retrieve them. I know firsthand that cases like this can be
quite complicated and lengthy.
But outside of the unique issues raised by Mr. Trump’s
status as a former president (for example, immunity and the Presidential
Records Act), the prosecution against him is actually not particularly complex.
The volume of classified records subject to discovery is not outside the norm,
and if the defendant were not Donald Trump, this would be a relatively routine
Espionage Act prosecution for unlawful retention of classified records.
With a competent and determined judge, Mr. Trump’s due process rights could have been well protected and the trial could have reasonably been set for this summer. However, this is not the first time Judge Cannon — a Trump appointee — has granted delay after delay, and thanks to a recent scheduling order, it’s now all but certain that the case will not go to trial until after Election Day.
If
Mr. Trump wins the election, the case will be effectively over. The Trump
Justice Department would almost certainly dismiss the indictment at his behest
when the clock strikes noon on Jan. 20, 2025.
One
way of taking a measure of how Judge Cannon has failed is by looking at the
progress of pretrial litigation, which started soon after Mr. Trump was
indicted in June 2023. In a criminal trial, the purpose of pretrial litigation
is threefold: to ensure the defense gets access to all discoverable material;
to resolve “dispositive” motions that could result in dismissal of the case if
granted, like Mr. Trump’s presidential immunity assertion; and to determine
what the trial will look like. The latter is an especially important task here
given that Mr. Trump is charged with illegally mishandling some of our most
closely guarded secrets, which could be further compromised depending on how
they are used at a public trial.
Measured
against these goals, Judge Cannon has made almost no progress over the past 11
months. That is shocking and indefensible.
On the scope of discovery, Judge Cannon has failed to rule
on Mr. Trump’s motion — filed four months ago — to compel additional discovery
from the government. Under her new schedule, she may not rule on it until July.
A ruling granting Mr. Trump’s motion could result in months of additional
delays.
The
discovery and use of classified information is one of the thornier issues in
cases of this nature. Here, too, the judge has made almost no progress, and her
inexperience is showing. She has ruled on just one substantive motion with
respect to Mr. Trump, which was filed by the government in December and applied
to only a sliver of the classified information at issue in the case. Under her
new scheduling order, the next phase of litigation involving classified
information won’t begin until mid-June. Judge Cannon won’t even begin to
address the difficult questions about how classified information will be used
and disclosed at trial until August at the earliest, even though Mr. Trump’s
team has had access to over 90 percent of the classified discovery since last
fall.
On
efforts to dismiss the case, in February, Mr. Trump made seven such motions,
and so far Judge Cannon has ruled on only two. Some of them are plainly
frivolous, but she has insisted on extensive hearings for each one, some of
which have not been held yet.
Finally,
Judge Cannon has not yet addressed a single substantive issue that will
determine what the trial looks like. The most difficult issues she needs to
address lie ahead, including those involving presidential immunity,
attorney-client privilege and, most important, how this highly classified
information will be used and protected at trial. She won’t even start resolving
these issues until August at the earliest — over 14 months after Mr. Trump was
indicted.
At
the same time, Judge Cannon has displayed an extremely high tolerance for delay
tactics from Mr. Trump’s defense team — or shenanigans, as we called them when
I worked on such cases. For instance, she has wasted two months addressing Mr.
Trump’s efforts to publicly expose witness information in his court filings.
Most federal judges would quickly shut down these tactics, but this judge seems
to invite them, and the delays they cause.
It is thus impossible to conclude that Judge Cannon is
diligently moving the case forward as she has claimed. While some minor delays
have been warranted to protect Mr. Trump’s rights, especially in light of his
other pending prosecutions, the overall speed of the case remains glacial —
seemingly by design.
Outside
of the unwarranted delays, Judge Cannon has shown a repeated willingness to
entertain extreme arguments from the Trump legal team. For instance, she
seriously considered adopting the position, via a jury instruction, that Mr.
Trump had unreviewable authority to designate highly classified government
documents as his own “personal” records under the Presidential Records Act.
Rather than squarely rejecting this absurd argument, she instead refused to
rule on it until closer to trial, leaving prosecutors in a lurch.
Despite
these issues, Mr. Smith, the special counsel, will not be able to seek the
judge’s removal from the case anytime soon, if ever. There is a very high bar
for removal, and scheduling delays alone are insufficient reason. Still, the
more significant issues to be decided lie ahead, and it’s possible that one or
more frivolous rulings from Judge Cannon could cause Mr. Smith to seek her
removal on appeal.
However,
the time necessary to resolve such an appeal will almost certainly push a trial
past the November election.
The
rule of law depends in part on fair, impartial judges. When judges put their
finger on the scale, as Judge Cannon appears to have done, it undermines public
confidence in our justice system. Moreover, failing to hold Mr. Trump
accountable will have the compound effect of undermining our credibility on
national security matters — by sending the message that a former president can
knowingly compromise the trusted secrets of our foreign allies with impunity.
The world is watching, and Judge Cannon is proving that she
is not fit for this moment.