Next Monday, Judge Tanya Chutkan is set to determine the trial date for Donald Trump’s federal criminal trial regarding his attempt to overturn the 2020 presidential election. The proposed dates from both parties are significantly different, with Special Counsel Jack Smith requesting January 2024 and Trump requesting a date over two years later. Smith has responded to Trump’s filing, arguing that their suggested schedule is the appropriate course of action.
In the modern era, trials, whether civil or criminal, involve an enormous amount of data, resulting in millions of pages of documents during the discovery phase. Trump’s argument, based on the government producing over 11.5 million pages of evidence as an excuse for a lengthy delay, lacks merit. It is disingenuous to apply outdated standards of paper cases to the current digital age. The visualization of a tower of physical paper presented by Trump’s lawyers in their brief is misleading and does not hold up in today’s technological advancements. Delays based on page-by-page reviews would result in cases never being tried for years on end, which may be the Trump team’s actual intention.
With decades of criminal law experience between us, Weissmann as a prosecutor and Eisen as a defense attorney, we understand the complexity of large document cases. We first encountered each other during the Enron litigation, one of the most intricate corporate criminal cases in history. This case involved hundreds of millions of documents and set the stage for handling similar cases in the future. Therefore, we can confidently say that Smith’s case can go to trial in early 2024, well within the bounds of due process and before the July 2024 Republican convention.
Trump’s team emphasizes the overwhelming amount of discovery that would supposedly require reading 78 copies of War and Peace each day. However, large-scale criminal and civil litigation frequently involves even greater volumes of data. Attorneys are adept at handling such high volumes using electronic tools, AI, computer searches, and document review by a team of attorneys. This technological advancement allows for expedited sorting and review, making timely trials possible.
Smith’s reply brief effectively counters Trump’s lawyers’ arguments, highlighting the benefits of technology in expediting the trial process. We have witnessed this approach in major international white-collar cases and the cases against Paul Manafort. In these instances, millions of documents and extensive electronic discovery were managed effectively, resulting in trial dates within reasonable timeframes.
Additionally, Trump’s team has exaggerated the volume of discovery truly at issue. Much of the material is not new and has already been accessible to them. The subset of new discovery material highlighted by the government contains duplicates, which can easily be deduplicated by computers. Furthermore, Trump is not lacking in resources and can afford to hire a team to review the discovery efficiently.
It is essential to ensure due process for every criminal defendant, including Trump. However, the proposed trial date falls within standard operating procedure and does not constitute undue haste. It is crucial to distinguish between what is due process in a specific case and a rush to judgment. The government’s proposed timeframe aligns with standard practices in criminal cases and is not unreasonable.
In conclusion, Judge J. Michael Luttig, an experienced and conservative jurist, has publicly supported the government’s position that the trial can proceed within the timeframe proposed.
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