Jack Smith’s Need for Speed Appears Set To Collide With Donald Trump’s Desire for Delay

The appearance of President Trump at a federal courthouse on Tuesday — his attorney, Todd Blanche, declared that with respect to all 37 counts, “we most certainly enter a plea of not guilty” — signals that the case against him with respect to classified documents at Mar-a-Lago has entered a new phase. Unresolved, though, is just how long the first federal criminal case against a former president will take to unfold. And the timetable for Mr. Trump’s case is not merely a procedural concern.With the 2024 election looming and Mr. Trump the leading contender for the Republican nomination, how this trial unspools will matter for not just Mr. Trump, but for the nation. Mr. Trump, who is 76, could in theory be sent to prison for the remainder of his life should he be convicted on all counts. A memorandum issued in 2022 by Attorney General Garland — to whom the special counsel, Jack Smith, reports — ordains that “prosecutors may never select” the timing or “any other action in any matter or case for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party.” Mr. Trump’s trial could test this commitment. It appears as if Mr. Smith’s need for speed is set to collide with Mr. Trump’s interest in delay. The latter’s claim that the prosecution is a political “witch hunt” and “election interference” could land with greater force in the heat of the campaign or even on the eve of an election. If he is both elected and convicted, an appeal could stretch beyond inauguration day. Should Mr. Trump regain the White House, a federal conviction could run aground on the president’s power of the pardon. He could also instruct the Department of Justice to drop the case. Several of his Republican competitors have indicated they would take that path. The most recent to do so are Ambassador Haley and the entrepreneur Vivek Ramaswamy. Mr. Smith, whose office has led the investigation of Mr. Trump, on Friday promised he will “seek a speedy trial … consistent with the public interest” on the 37 counts leveled against Mr. Trump and those that pertain to his valet, Waltine Nauta. Mr. Smith’s language echoes that of the Sixth Amendment, which promises that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” That guarantee is also embedded in the Due Process clause of the 14th Amendment. The Supreme Court has read this as a prohibition against “undue delay” in criminal prosecutions. In 1972, though, the high court allowed that a speedy trial was a “vague concept” about which it is “impossible to do more than generalize.” The court called it “amorphous,” “slippery,” and “necessarily relative” and prescribed a “functional analysis.” Beyond that word salad, what is clear is that the right to a “speedy trial” belongs to the defendant and not the prosecution. It is held by the “accused,” not the accuser. This right is guarded by statutory protection, which the justices have explained is “usually considered the primary guarantee against bringing overly stale criminal charges.”In 1974, Congress passed the Speedy Trial Act, which ordained — with exceptions — that an arraignment or indictment must follow within 30 days of arrest and a trial must begin within 70 days of indictment or arraignment. If any violation of the Sixth Amendment is discovered, the remedy is dismissal of charges with prejudice, meaning the case cannot be retried. The Southern District of Florida, where Mr. Trump’s case will be heard, is known among the Sunshine State bar to have attained “rocket docket status,” meaning that it adheres, with verve, to the timeline set out in the Speedy Trial Act.That reputation could have figured into Mr. Smith’s calculus in bringing this case in Florida rather than the District of Columbia. If it did, though, that figuring could be a violation of General Garland’s memorandum prohibiting a prosecutor from taking politics into account.Mr. Smith’s indictment estimated that the case would take 21 days to try in court, though that pace will depend on how the presiding judge, Aileen Cannon, handles the case. Mr. Trump did not meet her on Tuesday, but she was on the bench for an earlier stage of the documents drama, when she acceded to Mr. Trump’s request that a special master be appointed to superintend the case. Such an appointment would have entailed a significant slowdown in the pace of the government’s work, but it was knocked down by the riders of the United States Court of Appeals for the 11th Circuit. The case at hand centers on classified documents, which means that its pace could slow to a crawl on the basis of pre-trial appeals and disputes over redactions.Another point of contention for Mr. Trump could be the evidence furnished by one of his attorneys, Evan Corcoran, referred to as “Trump Attorney 1” in the indictment. Mr. Corcoran’s notes are central to Mr. Smith’s argument that Mr. Trump acted with the requisite guilty intent in retaining documents. The former president is likely to argue that those notes are inadmissible on the basis of attorney-client privilege, an argument that has previously foundered. Mr. Corcoran recalls Mr. Trump musing with respect to federal investigators: “What happens if we just don’t respond at all or don’t play ball with them?”

Jack Smith’s Need for Speed Appears Set To Collide With Donald Trump’s Desire for Delay

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