Special Counsel Jack Smith’s doubling down on a proposed December 11 start date for the criminal trial of President Trump escalates a dispute novel in the annals of American law — can due process be secured for a presidential candidate in an election year?

Mr. Smith’s “yes” comes in the form of a reply brief to a filing from Mr. Trump, who argued for an indefinite delay in the proceedings because “any trial of this action during the pendency of a Presidential election will impact both the outcome of that election.” The former president called the case against him “extraordinary,” its novelty precluding hastiness.   

The special counsel responds that “there is no basis in law or fact for proceeding in such an indeterminate and open-ended fashion.” He adds that a “speedy trial is a foundational requirement of the Constitution and the United States Code, not a Government preference that must be justified,” notwithstanding that the national parchment ordains that the right is one for only the “accused” to “enjoy.”

Mr. Smith also argues that “any argument” that the Presidential Records Act “mandates dismissal of the Indictment or forms a defense to the charges here borders on frivolous.” Mr. Trump has suggested that the law imposes a regime of negotiation rather than prosecution with respect to returning documents. Mr. Smith calls that a “baseless legal argument.”

Mr. Smith also discloses that “although the Government’s production included over 800,000 pages” — one of Mr. Trump’s arguments for delay also touched on the scope of the case — the “set of ‘key’ documents was only about 4,500 pages.” The prosecution also discloses that it has turned over  a “small subset of ‘key’ CCTV footage,” likely of the Mar-a-Lago storage room. 

Mr. Smith rebuts Mr. Trump’s contention that holding a trial in the crucible of a campaign would vitiate the promise of a fair jury trial. The special counsel dismisses the “claim that this Court could not select an impartial jury until after the presidential election” because “there is no reason to credit the claim” that the fielding of a 12 jurors committed to evaluating the evidence is an impossibility. 

The government proffers that Mr. Trump’s tendency to polarize “will not appreciably change after the completion of the election,” meaning that there is no justification for pushing off the trial until after November 2024. For Mr. Trump, though, occupying the White House would bring the ability to, by means of pardon or personnel, undercut the federal cases against him.

Mr. Smith’s request for a trial date comes as the New York Times reports that the special counsel met last month with the former president’s son-in-law and one-time senior adviser, Jared Kushner, in an effort to gain access to Mr. Trump’s state of mind — crucial for convicting — with respect to the outcome of the 2020 election. 

Mr. Kushner allegedly told Mr. Smith’s team that Mr. Trump believed — even in private colloquy — that the election was stolen. Yet the Times also reports that Mr. Smith’s team also questioned a former Trump aide, Alyssa Farah Griffin, who had told the House of Representatives’ January 6 committee that Mr. Trump said to her shortly after the election, “Can you believe that I lost to Joe Biden?”