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Donald Trump on Monday called for a lengthy delay before he goes to trial for allegedly hoarding military secrets at his Mar-a-Lago estate, contending that proceeding while he remains a candidate for president would make it virtually impossible to seat an impartial jury.
“Proceeding to trial during the pendency of a Presidential election cycle wherein opposing candidates are effectively (if not literally) directly adverse to one another in this action will create extraordinary challenges in the jury selection process and limit the Defendants’ ability to secure a fair and impartial adjudication,” attorneys for Trump and his personal aide and co-defendant, Walt Nauta, said in a court filing Monday night.
Trump’s eagerness to push off a trial sets up the first significant test in the unprecedented, ultra-high-profile case for U.S. District Court Judge Aileen Cannon, who is already weighing special counsel Jack Smith’s push for a December 2023 trial, one his team says is strongly in the public interest to begin as soon as possible.
The defense filing says bluntly that this December is too soon to start a trial and urges Cannon not to set a trial date now, but makes clear that Trump’s lawyers oppose any trial that would start during the presidential election season, which will get underway in earnest late this year. Assuming Trump wins the Republican nomination, the defense position appears to urge nearly a year of delay beyond what prosecutors are proposing.
The tactic is in keeping with Trump’s typical legal strategy: to drag out matters he’s facing as long as possible while hoping the legal landscape changes. But this time, it’s an effort to stave off a criminal trial that could result in a lengthy prison sentence if he’s convicted — the first ever prosecution of a former president.
In addition, if Trump wins the election, he would likely end up with legal and constitutional tools to disrupt the prosecution’s efforts. For example, he has previously proclaimed the power to “self-pardon” — an untested exercise of presidential power. He would also get to appoint leaders of the Justice Department, who could simply opt to pull the plug on any lingering criminal matters.
In the late-night submission, defense attorneys did not address those scenarios, but pointed out a series of potential conflicts and other proceedings that they say will make it “nearly impossible” to prepare for a trial for Trump and Nauta in the coming months.
One complication the defense lawyers cite is a civil trial set for October in New York involving an effort by New York Attorney General Letitia James to put major restrictions on Trump and his businesses over alleged pervasive fraud. Another is a criminal trial set for Trump in March 2024 on state charges related to payments to porn star Stormy Daniels just before the 2016 presidential election.
And Nauta’s attorney, Stan Woodward, has four criminal trials scheduled prior to December — including one he’s trying this week — two of which involve defendants charged with violence against police officers on Jan. 6, 2021, and another for former Trump aide Peter Navarro, who is charged with defying a congressional subpoena.
Defense attorneys say Smith’s urgency to take the federal criminal case to trial quickly is unwarranted.
“There is no ongoing threat to national security interests nor any concern regarding continued criminal activity,” the defense team says, possibly alluding to prosecutors’ statements backing lax release conditions for Trump and Nauta.
While prosecutors have characterized the case against Trump as relatively straightforward — despite the inherent complexities of bringing a former president to trial — Trump and Nauta’s attorneys say the trial will be extraordinarily complicated, requiring Cannon to make unprecedented rulings on the handling of presidential records, the validity of Smith’s probe and other matters.
“Therefore, a measured consideration and timeline that allows for a careful and complete review of the procedures that led to this indictment and the unprecedented legal issues presented herein best serves the interests of the Defendants and the public,” they write.
A federal grand jury in Miami indicted Trump last month on 37 felony charges, including 31 counts of willful retention of national defense information. Trump pleaded not guilty at a high-security hearing in Miami a few days later. Nauta struggled to find a local attorney, but finally entered a not guilty plea last week.
Those hearings took place in front of federal magistrate judges. Neither defendant has appeared yet before Cannon, whom Trump appointed to the bench in 2020.
The defense submission urging the judge not to set a trial date came after jockeying earlier in the day between Smith’s team and lawyers for Nauta over the timing for the first substantive hearing in the case.
Cannon set a hearing for Friday to discuss issues related to the handling of classified information as part of a future trial. But Woodward sought a delay of that hearing due to his trial this week in Washington.
In a filing around midday Monday, prosecutors from Smith’s team vigorously objected to any delay. However, by evening that dispute looked to be on its way to being resolved, with all sides offering to show up at Cannon’s Fort Pierce, Fla., courtroom next Tuesday instead. However, the change requires the judge’s sign-off, which had yet to happen by Monday night.
In the filing on trial timing, defense lawyers said they plan to try to insist that none of the evidence presented at Trump’s trial be kept from the public.
“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,” the defense attorneys wrote.
