Special counsel prosecutors accused Donald Trump of trying to delay the classified documents case to within three months of the 2024 election in a court filing late on Wednesday, suggesting his lawyers had attempted to weaponize the complex government secrecy rules to upend the trial schedule.
The alleged delay effort from Trump – whose overarching legal strategy is to push back his criminal cases, potentially until after the election because he could have them dropped were he to win – centers on a proposal from his legal team to extend pre-trial deadlines.
The Department of Justice prosecutors said in their filing that they were prepared to accept a short extension in the case after the presiding US district judge, Aileen Cannon, allowed Trump to ask for more time to prepare his next legal briefs following earlier delays in the pre-trial process.
But they sharply objected to a proposal from Trump to delay not just one deadline but the entire pre-trial schedule, saying it amounted to a veiled attempt to re-litigate the trial date set for May 2023.
“The Court invited the defendants to file a ‘motion to extend deadlines’,” the 15-page filing said. “Instead, defendant Donald J. Trump, joined by his co-defendants, filed a motion that threatens to upend the entire schedule established by the Court.”
At issue is the complex nature of the US government’s own rules for using classified documents at trial, known as Cipa, short for the Classified Information Procedures Act that governs how the materials can be introduced in national security cases.
Trump was charged with retaining national defense information – including US nuclear secrets and plans for US military retaliation in the event of an attack – and obstructing the government’s efforts to retrieve them, which is why the case is being governed by Cipa rules.
The complaint from prosecutors in the office of Jack Smith, the special counsel, is that Trump’s lawyers are attempting to weaponize Cipa section 4, where the judge has to decide whether to allow the government to redact the classified documents that need to be turned over in discovery.
Trump’s lawyers know the judge has to rule on the proposed redactions or substitutions before those classified documents can be turned over to them, prosecutors contended, and appeared to be trying to delay that entire process in order to push back the trial date further.
The complaint sets up another significant early test for Cannon, a Trump appointee who came under widespread criticism last year during the criminal investigation after she issued a series of favorable decisions to the former president before her rulings were struck down on appeal.
A spokesperson for the special counsel declined to comment. A Trump spokesperson did not immediately respond to a request for comment.
At its core, prosecutors objected to Trump lawyers’ claim they could not start Cipa section 4 before they had reviewed all of the discovery, and their attempt to create a new Cipa section 4 process that involved sequential court filings from both sides instead of doing it simultaneously.
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“The defendants provide no examples of where a Court has handled Section 4 briefing on a responsive briefing schedule as defendants propose – and the Government is aware of none,” the filing said of the proposal.
Prosecutors argued that Trump only had a number of potential defenses to the charge that he retained national defense information, and his lawyers did not need to go through all of the discovery to come up with their broad defense arguments for the purpose of filing a section 4 brief.
The defenses would come down to a handful of options, prosecutors argued: Trump was authorized to posses those documents, the documents did not contain national security information, the documents were not “closely held”, or that Trump did not wilfully retain them.
“The nature of the material the Government will propose substituting and the limited redactions it will propose are unlikely to require finely detailed defense theories in order for the Court to determine the helpfulness of the material or the adequacy of a substitution,” the filing said.
Prosecutors added that even if Trump did need to review more discovery than usual, most of the unclassified discovery had already been produced, including more than 200 witness interview transcripts as well as all of the surveillance footage at Trump’s Mar-a-Lago club.
The production of the classified discovery was also almost complete, the prosecutors said, and the only materials not turned over were five classified documents that were so highly sensitive that they could not be stored with the rest of the materials in a secure facility in Florida.
