'Speedy trial' promised by special counsel in Trump case may not go so
fast
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[June 13, 2023]
By Sarah N. Lynch
WASHINGTON (Reuters) - U.S. Special Counsel Jack Smith has said former
President Donald Trump will have a "speedy trial" in Miami on a 37-count
indictment charging him with willfully retaining classified government
records and obstructing justice.
But the complexities of handling highly classified evidence, the degree
to which Trump's legal team challenges the government's pre-trial
motions, and the way the judge manages the schedule could all lead to a
trial that is anything but swift, legal experts say.
“In every case that I had involving classified information, we never had
a speedy trial," said Stephanie Siegmann, a former chief of the national
security unit of the U.S. Attorney's Office in Boston, who noted that
the evidence-sharing process with Trump's defense team known as
discovery could potentially take a year.
“This case will be designated complex because it involves classified
information," added Siegmann, now a partner with the law firm Hinkley
Allen.
The U.S. Constitution guarantees criminal defendants the right to a
speedy trial, and defendants in federal cases are allowed to have a
trial start as soon as 70 days from the time they are indicted.
But in most criminal cases, both sides can agree to pause that clock in
order to give them more time to prepare.
Delays could be troublesome for Trump, who is currently the Republican
front-runner for the 2024 presidential election and may not wish to have
the trial looming as the elections approach.
At the same time, his lawyers may want to delay the process for legal or
political reasons by lodging objections each step of the way - a tactic
he has used in the past.
Smith's pledge for a speedy trial makes sense because he doesn't want to
interfere with the election process, said defense attorney Mark Zaid.
"But that was just wishful thinking. The reality is the Trump team will
be controlling much of the timing of the litigation."
A spokesman for Smith's office declined to comment beyond his public
statements, while an attorney for Trump did not immediately respond to a
request for comment.
Espionage Act cases like Trump's cases are especially complex because
some of the key evidence presented during a public trial is classified.
As such, prosecutors need to balance two seemingly competing forces: The
need to protect the nation's closely held secrets while still ensuring
that Trump is afforded due process by having access to the evidence to
help him prepare a defense.
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Former U.S. President Donald Trump
arrives at Miami International Airport as he is to appear in a
federal court on classified document charges, in Miami, Florida,
U.S., June 12, 2023. REUTERS/Marco Bello
Many other Espionage Act cases have hinged on a few classified
records or even just one document, such as in Boston where a
National Guardsman stands accused of leaking military secrets.
Trump, by contrast, is facing charges over 31 top secret or secret
documents - a far greater number.
After Trump enters his plea, both parties and the court will need to
follow a strict and meticulous set of rules set forth in a law known
as the Classified Information Procedures Act to protect the
classified records and manage how they can be disclosed.
"CIPA has so many different steps, that each one just by virtue of
the fact it's a step takes an uncertain amount of time," said
attorney Kel McClanahan.
These CIPA procedures will require Trump's defense team to obtain
security clearances in order to view classified materials.
Deciding how classified evidence is shared, both to the defense team
and to the jury, can get contentious and may lead to legal battles
that will play out largely behind the scenes under seal. At times,
some of those hearings by law must be conducted ex-parte, meaning
Trump's own lawyers cannot be present.
Moreover, in Espionage Act cases, decisions on pre-trial motions
related to classified evidence can be appealed - an extra step that
is not usually allowed in most routine criminal cases.
If for example prosecutors seek to shield records that reveal battle
plans or nuclear weapons secrets, Trump's team could agree it should
be protected, or they could fight to make it public.
"Some defense teams would agree that that information has to be
protected," said David Aaron, a veteran former Justice Department
prosecutor now with Perkins Coie.
"But a defense team has every right to contest the idea of even
protecting that at trial...They could go ahead and challenge every
single argument the government makes."
(Reporting by Sarah N. Lynch; editing by Amy Stevens and Alistair
Bell)
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