How a Trump-appointed judge could influence his documents case

Jack Smith, the special counsel who handled the document search of former President Donald J. Trump, vowed to seek “a speedy trial.” But that’s up to Judge Aileen M. Cannon, who will wield considerable power over the calendar, the evidence, and the jury.

Last year, Judge Cannon, a Trump-appointed judge, briefly disrupted the documentary investigation by issuing rulings favorable to him when he challenged the FBI’s search of his Mar-a-Lago club and estate in Florida before a conservative court of law appeal ruled that she had never done so. legal authority to intervene.

It remains to be seen how she will handle her second turn in the spotlight. It is also not clear whether she will refer some preliminary motions to a magistrate working under her. But here’s a closer look at how her decisions as a judge presiding over the trial — such as about what can be included and excluded — might affect the case.

Slow down the calendar

Mr. Trump has long pursued a strategy of trying to delay legal proceedings against him in order to keep the clock running. If the trial can be delayed beyond the 2024 presidential election, he or another Republican nominee can take office and close the case.

“I think the Justice Department will do everything it can to bring the case to court as soon as possible, but it will be a challenge to prepare it before we are well into the primaries,” said Brandon L. Van Grack, a former federal prosecutor who has worked on complex cases involving national security and classified material.

He added: “These issues are incredibly important to understand because we are talking about a matter that can affect an election – and more than just the general election.”

Classified evidence

Before the trial begins, there will almost certainly be extensive battles behind closed doors over the use of classified evidence, a matter governed by the Classified Information Procedures Act, or CIPA. The law was designed to reduce the likelihood of so-called graymail in criminal cases involving national security, in which defendants threaten to divulge sensitive secrets unless the prosecution drops charges against them.

One potential problem: whether the administration should disclose all 31 classified documents that form the basis of the 31 charges against Mr. Trump for illegally holding national security secrets. Their content is the main evidence of whether they qualify as the type of information protected by the espionage law.

CIPA initiates legal proceedings to shield sometimes sensitive information from the public, including by redacting some documents or replacing abstracts. But defense attorneys may argue that they must discuss their full content in open court for the trial to be fair.

If Mr. Smith were allowed by the intelligence community to use those 31 documents on the basis that he would preserve them for wider public dissemination, any rulings by Judge Cannon requiring them to be presented in open court could result in the government instead drops some of the documents. costs based on those documents.

Trump’s defense lawyers are also likely to argue that the government is required to turn over related classified material in the “discovery phase”, and that they may want to use some of those documents in open court as well. Either party may appeal Judge Cannon’s decisions on these cases before trial, creating additional opportunities for delay.

Attorney-client evidence

When filing allegations that Mr. Trump obstructed the administration’s efforts to recover the documents and caused one of his lawyers to make a false statement to the Justice Department, federal prosecutors described Mr. Trump’s interactions with his legal team. These included how he apparently suggested destroying classified documents and hid from his lawyers that he had boxes of files removed from a storage unit after a subpoena.

Normally, prosecutors cannot subpoena defense attorneys and force them to testify or turn over notes on their client. The attorney-client privilege protects the confidentiality of such discussions and work.

That privilege is intended to protect the rights of people who are in trouble because of a possible crime in the past. People need to be able to talk frankly with their lawyers about what happened to understand their options. That would be impossible if whatever people admitted could be used against them as evidence in court.

But there is an exception: when attorney-client communication is part of ongoing or future crimes. If judges think there is enough evidence to trigger this “crime fraud exception,” they will uphold a subpoena that forces defense attorneys to provide evidence about what they and their clients said to each other.

During the inquest, Judge Beryl A. Howell of the Federal District Court for the District of Columbia ruled that the exception applied, forcing Mr. Trump’s attorneys to provide information to the grand jury. But Judge Cannon is not bound by Judge Howell’s decisions when it comes to what information to present to a jury.

If Mr. Trump’s lawyers ask Judge Cannon to suppress the evidence to protect attorney-client privilege during the pretrial investigation and she does, prosecutors could appeal — but that would further slow things down.

If she were to delay a decision until after the trial has begun, prosecutors can suspend the trial and appeal using an extraordinary and rarely used tactic summoned a summons from mandamus, said Paul F. Rothsteina law professor at Georgetown University and specialist in criminal litigation.

Follow-up Actions for Misconduct

Mr. Trump and his legal team have indicated they will target prosecutors and investigators. That could lead to pre-trial motions to dismiss charges based on allegations that prosecutors have committed misconduct, such as improper witness pressure, vengeful prosecution, and selective prosecution.

It is routine for defendants to make such allegations, and it is routine for judges to review and dismiss them briefly. The standards for finding a violation very high. But if Judge Cannon accepted such claims, she could demand information from prosecutors, hold hearings, and essentially try the investigators before Mr. Trump appears before a jury.

Jury Selection

Prosecutors and defense attorneys will have a certain number of “coercive” challenges in which they can bar someone from serving on the jury without giving a reason. But they also have unlimited challenges for potential jurors “for a good cause” if they can point to signs that those people are biased. Judge Cannon will have the authority to accept or deny any “for cause” challenge, potentially tipping the composition of the jury.

‘Rule 29’ Motions for acquittal

After the prosecution and defense present evidence, the defense can file a so-called Rule 29 motion asking Judge Cannon to acquit Mr. Trump of one or more of the charges, arguing that the prosecution’s evidence was insufficient .

She could do that one of two ways: acquit Mr. Trump right away, or leave the case to the jury and then acquit only if the jury wanted to convict instead.

If the judge waited and gave the jury a chance to vote for conviction, prosecutors could appeal the judge’s acquittal and reverse it, he said Julie O’Sullivan, a professor of law at Georgetown University and former federal prosecutor. But if the judge acquitted the defendant before a jury verdict, she said, that result would be final and prosecutors would not be able to appeal.

Hung Jury

In federal criminal trials, all 12 jurors must unanimously agree that the prosecutors have proved each of the elements of a crime beyond a reasonable doubt in order to convict.

If the jury can never come to an agreement, the result is a mistrial and prosecutors must decide whether to start over with a new trial. Judges usually try to avoid that by encouraging jurors to resolve their differences and reach consensus with a delay, and by giving them more time to deliberate. But if a disagreement quickly arises, a judge can also bring the government to its knees by immediately announcing a mistrial.