Donald Trump is effectively arguing that for as long as he’s running for president, he should be spared from standing trial over his alleged mishandling of classified documents.
In a fiery legal filing Thursday, special counsel Jack Smith showed he is wise to the attempt – the latest twist of an extraordinary saga caused by the unprecedented drama of the federal indictment of a past and possibly future president.
Trump’s arguments – effectively for an indefinite delay in the trial – are fueling an impression that the true goal of his 2024 bid is not to “save America,” as he tells supporters, but to save himself by thwarting a day of reckoning, perhaps forever, in the case over national defense information he kept after leaving office and stored at his Mar-a-Lago resort. In other words, his political strategy is doubling as a legal one as he seeks to recapture the White House despite the stain of dual impeachments and two criminal indictments.
Smith’s filing hit back at aspects of Trump’s call for a delay in the trial in a case in which he faces 37 counts, including charges related to his alleged willful retention of the material and alleged attempts to obstruct the investigation into the documents. Smith told US District Judge Aileen Cannon that Trump’s team had exaggerated the amount of evidence in the case and overstated the complications of using classified evidence. The special counsel also dismissed the argument of the former president and his co-defendant, aide Walt Nauta, that it would be impossible to seat a fair jury before the 2024 election since Trump is a candidate. Trump and Nauta have both pleaded not guilty in the case.
The robust counter-arguments came ahead of a hearing in Florida on Tuesday – the first before Cannon – at which lawyers will debate how to handle classified material during the trial.
It also emerged on another day that provided fresh evidence of Smith probing Trump’s former inner circle in a separate investigation – this one into alleged attempts to overturn the 2020 presidential election and the events leading up to the mob attack on the US Capitol on January 6, 2021. Jared Kushner, the ex-president’s son-in-law and former White House aide, testified before the grand jury empaneled in the case, a source familiar with the testimony told CNN on Thursday. Another former close Trump confidant, Hope Hicks, also went before the grand jury in June, according to two sources familiar.
The developments are the latest sign that Smith is running an aggressive probe into the post-election conduct of Trump and others amid signs that he may be getting closer to any charging decisions. Some of the questions being asked in the grand jury were about whether Trump was told he had lost the election – a potentially critical legal point – according to one of the sources.
Delaying is a familiar tactic in many legal cases, and asking for postponements or continuances is a perfectly valid approach for a defendant’s legal team. Delaying is also a strategy that Trump has repeatedly used during his long business and political career to postpone – or try to evade – accountability for his repeated challenges to the law and the Constitution.
Every wrinkle and decision of this particular case is especially notable given the extraordinary circumstances – a former president, who’s the front-runner for the GOP nomination, is being prosecuted by the Justice Department of his successor and, depending how the GOP primary and general election turns out, his possible eventual predecessor in office.
Smith told Cannon in his filing that there was no reason to agree with Trump’s arguments that it would be impossible for him to receive a fair trial before the 2024 election is over. “There is no basis in law or fact for proceeding in such an indeterminate and open-ended fashion, and the Defendants provide none,” Smith wrote, underscoring his request for a trial date of December 11 of this year.
Besides dismissing the Trump team’s warnings about the complications inherent in a trial focusing on classified information, Smith dismissed their contention that it would be impossible to find a jury that would give Trump a fair trial. “Our jury system relies on the Court’s authority to craft a thorough and effective jury selection process, and on prospective jurors’ ability and willingness to decide cases based on the evidence presented to them, guided by legal instructions from the Court,” the special counsel’s filing said.
Trump’s team had also introduced a political dimension into their pre-trial arguments. They said that since Trump is a presidential candidate being prosecuted by the Biden administration Justice Department, the only fair thing to do would be to delay the trial until after the election. And most audaciously, his lawyers also effectively argued that he would be too busy to go on trial as he takes aim at a second term.
“This undertaking requires a tremendous amount of time and energy, and that effort will continue until the election on November 5, 2024. Mr. Nauta’s job requires him to accompany President Trump during most campaign trips around the country,” the lawyers wrote in a filing earlier this month. “(Trump’s) schedule makes trial preparation with both of the Defendants challenging. Such preparation requires significant planning and time, making the current schedule untenable.”
Smith gave that argument short shrift, writing that “many indicted defendants have demanding jobs that require a considerable amount of their time and energy, or a significant amount of travel.”
This particular question is a critical one because it gets to the core of the foundational American notion that everyone is equal before the law. Trump has been repeatedly arguing to his supporters that he is a victim of political persecution. But in these filings, he is also effectively arguing that he should get different treatment than anyone else – simply because he’s running for office.
While it’s true that a campaign is a drain on a candidate’s time, it was Trump’s choice to run for president while multiple legal threats loomed over him. If his claims are upheld and the trial is delayed in this case, it could set a precedent that potential office holders can be immune from certain legal proceedings while campaigning. That could prompt politicians in the future to run to avoid going on trial.
Trump’s arguments are also a characteristic insight into his view that as president – or as an ex-president – he’s above laws and rules that apply to others. First in this case, he’s claimed he’s entitled to keep highly classified information, even though he’s now a private citizen. Now he’s saying he deserves special dispensation because of the nature of the office he’s running to reclaim.
Trump’s attempts to delay this trial have raised questions about his motives. That’s because, were he to win the GOP nomination and then the presidency, he would be in a position to instruct the Justice Department to drop this case and any others against him. Even if he doesn’t win the nomination and another Republican wins the White House, a new GOP president might halt the prosecution of a fellow Republican. That potential president would also come under huge pressure in the party to pardon Trump if he were eventually convicted in this case.
The most significant known detail about the testimony of Hicks and Kushner, the latter which was first reported by The New York Times, lies in the fact that sources told CNN they were asked whether Trump was told he had lost the 2020 election.
Trump has incessantly and falsely claimed that the presidency was stolen from him – despite no evidence that this was the case and courts throwing out his multiple election challenges. Even his former Attorney General William Barr said there was no evidence of widespread fraud in the 2020 election. But it could be vital for prosecutors in the election interference case to establish whether Trump actually knew he had lost.
“It’s the single most important question – intent,” CNN senior legal analyst Elie Honig said. “The best possible evidence that they can get … is Donald Trump acknowledging that he knows he lost,” Honig told CNN’s Erin Burnett on “OutFront” on Thursday. “If you can get it out of his mouth that he knows he lost, that’s golden evidence for the prosecutors.”