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FORT PIERCE, Fla. — Federal prosecutors and lawyers for Donald Trump pressed Judge Aileen M. Cannon on Friday to make a decision: Should the former president’s trial for allegedly mishandling classified documents take place before or after the November election?
And if the high-profile, high-stakes trial of the GOP front-runner for president is to take place before the election, would it be too late to start the proceedings in September, so close to when voters begin casting ballots?
Cannon heard hours of arguments on those questions and other issues Friday, but left the bench giving no indication of how she would decide the trial’s timing — though it now seems clear it will not begin in late May as originally planned.
Prosecutors are seeking to start in July, while Trump’s lawyers say the trial should wait until after the election, or August at the earliest.
Trump, the first former U.S. president charged with crimes, faces four separate indictments as he campaigns for another term in the White House, an unprecedented test of the nation’s legal and political systems. The timing of each case — including a state trial in New York scheduled to begin March 25 — has grown increasingly consequential as he racks up primary victories and draws closer to a general election rematch against President Biden.
Cannon was careful in her questioning to sidestep much discussion of the election calendar on Friday, even as Trump’s lawyers brought it up frequently. The day-long hearing, which Trump attended, nevertheless underscored the looming collision of the political calendar and Trump’s myriad criminal cases.
Special counsel Jack Smith, who did not speak during the session but took notes throughout, has asked to begin the classified documents trial July 8, and his deputies repeatedly urged the judge to press ahead.
“This case does need to move,” said Smith’s deputy, Jay Bratt.
With Trump looking on from the defense table, his lawyer Todd Blanche asked Cannon to wait until after Election Day, saying every day that passes makes the court schedule more unfair to Trump’s campaign and to the democratic process.
“A trial that takes place before the election is a mistake and should not happen,” Blanche said. “You’re talking about taking Mr. Trump off the campaign trail for blocks of time for really no reason.”
He also argued that it would be nearly impossible for Trump’s legal team to prepare for a summer trial, as he and other attorneys are defending Trump in the New York criminal case, which focuses on Trump’s alleged falsification of business records to cover up a 2016 hush money payment. That trial is expected to last into May.
Cannon signaled she plans to hold a number of pretrial hearings on upward of a dozen defense motions. “There needs to be some space in the schedule” to allow for flexibility, she said.
She also asked the attorneys about a Justice Department 60-day rule that states that prosecutors should not indict any candidate — or take other outward investigatory steps — too close to an election.
Prosecutors said the rule would not apply to a case that has already been charged and is going to trial — since a judge, not prosecutors, sets that schedule. Trump’s attorneys said holding a trial too close to the election would amount to election interference and argued that the rule would apply to the Florida trial.
On Wednesday, the Supreme Court said it would hear oral arguments in late April on Trump’s claim that he is immune from prosecution for acts he took while president. That decision will probably delay his separate D.C. federal trial — in which he is accused of trying to block Biden’s 2020 election victory — until at least late summer or early fall.
The issue of presidential immunity was mentioned only briefly at Friday’s hearing. But prosecutors warned Cannon that an August date for the Florida trial, which Trump’s lawyer suggested as an alternative to waiting until after the election, might complicate scheduling for a trial in D.C.
If Trump is again elected president and takes office before either of his two federal trials, he could try to appoint an attorney general who would drop the charges. In addition, Justice Department policy generally prohibits prosecuting a sitting president.
Trump is charged in Florida with dozens of counts of mishandling classified information after his presidency ended and plotting with two aides to obstruct government efforts to recover the material from Mar-a-Lago, his Palm Beach home and private club. Cannon indicated late last year that she would likely push back the scheduled May 20 start date to sort out complicated issues involved with examining classified evidence and presenting it to a jury.
The former president also faces state charges in Georgia related to efforts to block the 2020 election results there.
In total, Trump faces 91 charges across the four criminal cases. He has pleaded not guilty in all of them.
The afternoon portion of Friday’s hearing focused on whether the names of witnesses and the substance of what they have said to investigators should be redacted in public filings.
Trump’s lawyers and lawyers representing a media coalition have argued they should not, because the court process should be open and transparent. Prosecutors said publicizing the names could lead to harassment and threats against the witnesses.
On that issue, Cannon already ruled in favor of Trump, but prosecutors have asked the judge to reconsider, saying that people whose names have been publicly linked with Trump investigations have been subjected to abuse.
“There has been so much harassment, intimidation,” said prosecutor David Harbach. “It is a real concern, and they know it,” he added, referring to Trump’s lawyers.
Trump has seized on the criminal charges to rally his supporters, arguing that he is being targeted by political opponents, and polling shows that Trump’s support among Republicans only grew last year after he was indicted. But it’s possible a criminal trial — and a potential conviction — could harm his candidacy.
In a January poll conducted by NBC News, voters who were asked whom they would vote for gave a slight edge to Trump (47 percent) over Biden (42 percent). However, Trump’s level of support dipped to 43 percent when voters were asked how they would vote if Trump is convicted of a felony this year. Yahoo-YouGov polls also found Trump’s support dropping between four and nine percentage points if he were convicted of a serious crime.
Polling expert Mark Blumenthal has cautioned, however, that such hypotheticals should be taken with a grain of salt; in 1998 and 1999, Americans said they would be more likely to favor President Bill Clinton resigning from office if the House of Representatives voted to impeach him. When the House did so, support for Clinton resigning did not increase.
In the Florida case, prosecutors have accused Trump of taking hundreds of classified documents with him when he left the White House, and The Washington Post has previously reported that some of the material was related to nuclear secrets, Iran’s missile program and U.S. intelligence efforts in China.
For more than a year, Trump and his representatives fought efforts by the National Archives and Records Administration to return presidential records. The Justice Department became involved in early 2022 when officials realized those papers included highly sensitive secret papers.
Even after he was served with a grand jury subpoena for classified documents, authorities allege, he turned over some and deliberately withheld many others.
Possession of some classified information by a former president is not unusual; what is different about the Trump case is his alleged conspiracy to keep some of the materials and cover up those actions. The criminal investigation intensified in August 2022 when FBI agents searched Mar-a-Lago, Trump’s home and private club, and seized boxes of material.
Even though the immunity question that will be considered by the Supreme Court in April stems from Trump’s D.C. prosecution, it could also impact the Florida case — and potentially the Georgia case, where the former president has also claimed some immunity. Trump argued in a filing last week that most of the Florida charges against him should be dismissed — noting that he was still president when he packed up the classified documents and saying that he designated them at that time as personal materials.
Trump was no longer president when federal officials tried to retrieve the materials, however, and his lawyers did not argue that the obstruction-related charges in Florida should be dismissed on the grounds of presidential immunity. Instead, he sought the dismissal of those charges on other grounds, arguing among other things that Attorney General Merrick Garland’s appointment of Smith to lead the investigation was invalid since Smith was not confirmed by the Senate.
Cannon may now have to determine whether she sees enough similarities between the presidential immunity arguments in her case and the D.C. case to hold up her pretrial proceedings — at least those related to the charges of illegal retention of classified material — until the Supreme Court makes its decision.
Mark Berman, Scott Clement and Marianne LeVine in Washington contributed to this report.