After Trump was accused, Cannon scheduled a trial for May 20, 2024. Last October, she said she would review that date at a March 1 hearing. The hearing went as expected, but no alternative date was chosen, even though both sides indicated the trial may begin this summer if the May 20 date deemed irrelevant.
There are more unanswered questions. About six requests to dismiss the case have been submitted by defense lawyers, including claims that the prosecution is spiteful and that Smith was illegally appointed special counsel.
Cannon heard hours of arguments this month on two dismissal motions: whether Trump was entitled under the Presidential Records Act to retain classified documents after leaving office and whether the Espionage Act law at the heart of the case was unconstitutional under its vagueness. Cannon looked doubtful of the defense claims and issued a brief two-page order denying the vagueness argument after the hearing, allowing Trump to try again.
She has not yet moved on the Presidential Records Act motion, but legal experts noticed her last week direction to both sides' lawyers to weigh in on jury instructions that appeared to benefit Trump. She asked them to answer to the premise that a president has sole authority under the PRA to categorize documents as personal or presidential. Courts and juries cannot categorize.
That language echoed Trump's lawyers' months-long arguments. They argue the legislation enabled him to keep the records he was charged with as personal files. Smith’s team claims the statute doesn’t apply to illegal possession of top-secret material, including nuclear secrets.
Aaron said, “It seems a little early in the game to be talking about jury instructions when there are substantial questions of law that need to be resolved,” but the jury instructions order might set up those resolved questions. In addition to the petitions to dismiss, Cannon has yet to rule on a defense motion to compel prosecutors to turn over a trove of information they say would prove President Joe Biden's administration had “weaponized” the criminal justice system in bringing the Trump case.
That argument supports Trump and his associates' campaign-trail claims of political persecution by the Biden Justice Department. He objected that he was prosecuted when Biden, who was also probed for retaining sensitive information, was not, requiring Smith's staff to explain the many discrepancies.
A defense request to file a motion to identify prosecution witnesses on the public docket is even more acrimonious. Cannon consented to the filing but halted it after prosecutors claimed that it could endanger witnesses. “Delaying it may be that the judge is afraid of making a mistake, but it just puts it off,” said Case Western Reserve University law professor Kevin McMunigal. “Eventually she must decide about these.”
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