Legal experts say a trial in the case of former President Donald Trump’s handling of allegedly classified documents may not happen until after the 2024 presidential election — which could work in the former president’s favor.
“I don’t see how it gets to trial before the November election,” legal expert and former Assistant Attorney General Andrew McCarthy said on a National Review podcast on Friday.
According to McCarthy and an article in the Washington Post published Monday, the use of classified information during a trial is governed by a law called the Classified Information Procedures Act (CIPA).
He said in a classified information case, lawyers litigate before the trial what classified information is admissible in a case. Both the prosecution and the defense must share with the government what classified information they intend to use.
McCarthy said the defense “always claims that they need more, not because they really think it’s exculpatory, but because they know the government doesn’t want to reveal it. And they try to make a record that they were prevented from making their defense.”
He said the judge then rules what is relevant, and the government can either declassify the information so that it can be used in the trial or offer a substitute, but it has to give the defense enough to make the argument they would have been entitled to make.
McCarthy said in the event that the government does not want to declassify the information and the court says there is no adequate substitute, CIPA holds that the attorney general can order the court not to allow the classified information into the trial, but then the counts pertaining to the information have to be thrown out due to lack of a fair trial.
“All that has to be worked out prior to trial,” McCarthy said.
He also said another obstacle to a speedy trial is that Trump’s lawyers have to be cleared to get access to classified information.
McCarthy said due to the difficulty of this process, he thought Special Counsel Jack Smith would focus on obstruction rather than the allegedly classified material Trump retained.
“I don’t know how on earth he gets it to trial prior to the November election. And I would say that even if Trump didn’t have four or five other cases on his plate that they have to schedule around,” he added.
He said he once had a case involving “much less” classified information, and it took 18 months to litigate before the trial.
“That was one little discrete piece of evidence with respect to one defendant out of 12. And that’s how long it took in front of a judge who, by the way, is very efficient,” he said.
Trump is charged with 31 counts of violating the Espionage Act, each count representing a document.
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The Washington Post reported Monday that CIPA could give Trump’s legal team “a tactical timing advantage.”
“Lawyers who have worked such cases view the law as a time-consuming and difficult set of procedures that can be extremely beneficial to any defendant seeking to delay a trial,” it reported.
The report noted that the judge on the case, Judge Aileen Cannon, has little experience with classified documents issues, which could further delay the case. It also noted that Trump will likely have multiple lawyers who will need to get a security clearance and that Trump has a penchant for firing and hiring new ones.
In addition, the report noted that classified material can only be viewed in certain locations for handling classified information and can only be discussed with potential witnesses inside those certain locations, further slowing down the process.
Joshua Dratel, a criminal defense attorney who handles national security cases, told the Post the discovery process in cases involving classified materials typically takes much longer than in other types of criminal cases.
“The preparation of those materials takes an inordinate amount of time. And it may be that the only way you can review the discovery materials is in there,” he told the paper. “You can’t put it on a laptop or read it on a train. There are a lot of limitations on access that extend the process of review.”
Former Justice Department Lawyer David Aaron, who prosecuted the case of National Security Agency contractor Reality Winner, said prosecutors could start with nonclassified aspects of the case.
“The documents themselves are classified, but evidence such as the discussions about where they were moved, or the search warrant affidavits, are likely unclassified,” he told the Post. “You cannot defend an entire case without a security clearance, but you can make progress in the case without one.”
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