US District Court Judge Aileen Cannon noted Tuesday that the volume of discovery materials to be turned over to the defense in the classified documents case against former President Trump would factor into her decision on when the former president will stand trial, per the Guardian. There are "1,545 pages of classified evidence, 1.1 million pages of unclassified evidence and at least three years worth of surveillance video," per Bloomberg. How will it all be handled? Firstly, Trump's lawyers will need security clearances to see the majority of classified documents in the case, to be taken to a special facility at the federal courthouse in Miami, but only two have "applied for an interim clearance so far," per the New York Times.
Trump's lawyers say there should be "no 'secret' evidence, nor any facts concealed from public view relative to the prosecution of a leading presidential candidate by his political opponent." As the Times reports, defendants in such cases may threaten to reveal classified information during trial in an attempt to force the government to drop a charge in what's known as "graymail." But prosecutors can use the Classified Information Procedures Act, passed in 1980 in an effort to prevent graymail, to limit what evidence is turned over to the defense. And defense lawyers must indicate the classified evidence they tend to raise at trial ahead of time, giving the prosecution the opportunity to block certain evidence with the judge's approval.
"Often, there are hearings not open to the public where the attorneys and the judge will literally go through documents line by line deciding which sentences and which individual words can be used in open court and which ones cannot," a defense lawyer with a security clearance tells the Times. The judge could also allow a substitution document that lays out facts without compromising protected information as long as doing so doesn't impede Trump's right to a fair trial. However, Cannon could take another route, deciding that classified evidence can be known to the jury, but not to the public, under the silent witness rule.
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As of now, prosecutors have asked Cannon "to partially restrict defense lawyers from sharing documents with Trump" and his co-defendant Walt Nauta, per USA Today, though defense attorneys say they intend to object to portions of the request. The prosecution can move to appeal Cannon's decisions before trial, while the defense will have to wait until after. Cannon said Tuesday that she would "promptly" issue a written decision on the trial date, per USA Today. Prosecutors have proposed a December start, while Trump's attorneys are pushing for a delay until after the 2024 presidential election, when Trump, if elected, could pardon himself or otherwise move to drop the case. (More Donald Trump stories.)
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