US District Court Judge Aileen Cannon is considering the volume of discovery materials to be provided to the defense in the case against former President Trump before deciding on the trial date. According to the Guardian, there are 1,545 pages of classified evidence, 1.1 million pages of unclassified evidence, and several years worth of surveillance video. Trump’s lawyers will need security clearances to access the majority of the classified documents, which will be kept at a special facility in Miami. However, only two of Trump’s lawyers have applied for an interim clearance so far, as reported by the New York Times.
Trump’s lawyers argue that there should be no undisclosed evidence or hidden facts in the prosecution of a presidential candidate by his political opponent. Defendants in such cases may use the tactic of “graymail,” where they threaten to reveal classified information during trial to force the government to drop charges. To prevent this, prosecutors can use the Classified Information Procedures Act, passed in 1980, to restrict the evidence shared with the defense. Defense lawyers must indicate the classified evidence they intend to present at trial in advance, allowing the prosecution to request the judge’s approval to block certain evidence.
In closed-door hearings, the defense lawyers, the judge, and the prosecution go through documents line by line to determine what can be used in open court. The defense lawyer with security clearance interviewed by the Times explains that even individual sentences and words may be scrutinized. Alternatively, the judge may allow a substitution document that presents the facts without compromising protected information, as long as it does not impede Trump’s right to a fair trial. The judge could also decide that classified evidence can be known by the jury but not the public, following the silent witness rule.
Currently, prosecutors have requested partial restrictions on defense lawyers sharing documents with Trump and his co-defendant Walt Nauta. Defense attorneys plan to object to some parts of this request, according to USA Today. The prosecution can appeal the judge’s decisions before the trial, while the defense will have to wait until after. Judge Cannon has promised to issue a written decision on the trial date promptly. Prosecutors proposed a December start, but Trump’s lawyers are advocating for a delay until after the 2024 presidential election. This would allow Trump, if elected, to potentially pardon himself or dismiss the case.
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