I am genuinely puzzled about something, and I should like to appeal to the collective wisdom of the readership of this blog for help. It concerns the amount of time it will take before the documents case actually goes to trial. Television commentators who have experience with the courts seem to agree that even if the judge plays by the rules, it is unlikely that the case will go to trial before the election, which is now a bit more than 16 months away. They all mention the necessity of the lawyers getting security clearances and they mention the various motions that the defense can bring up to slow things down and then they wave their hands and say “so it will not go to trial until the election.” I just do not understand that. I can see how these various delays and delaying tactics could push off the trial date six months or eight months or 10 months or even a year, which would postpone it until after the Republican Convention in July of next year. But is there anybody reading this who actually has experience with the federal courts or knows about them who can explain to me what sequence of steps could result in a 16 month postponement?
I'm a federal criminal defense lawyer (and longtime reader of this great blog). Here's how a 16-month postponement could happen. 1) It can take up to 1 year to get security clearances [12 months]. 2) Once you've got security clearances, you need additional time to both review the discovery you couldn't access until you had security clearances and to do follow-up investigation based on information in that discovery (including witness interviews, independent subpoenas for records, and sheer document review and analysis) [call that another 3-6 months, and could easily take longer]; 3) then, once you've completed your review, you may file pretrial motions --- to dismiss, to suppress evidence, for additional discovery, etc. --- which can easily take (at least) another 2-4 months once motion/response/reply deadlines are set, a hearing is held, and a (probably written) decision is prepared; 4) then you engage in trial-related litigation --- motions in limine, preparation of jury instructions, etc. --- which add another 1-2 months, at least, before trial starts. So there you've gotten to 24 months. And this is assuming --- a reasonable but not certain assumption --- that the discovery in the case is not exceptionally voluminious. There are cases where the government will disclose terabytes of discovery that can take years to review. Large federal criminal trials often do not occur for years ... not because of incompetence or malevolence but simply because the volume of materials that you need to review is so immense.
ReplyDeleteAnd there are other possible issues that could delay the case. One example (and I could imagine this continuing to be at play here): the possibility that the government has obtained potentially privileged (e.g., attorney-client privileged) materials. If so, then the government usually puts a "taint team" --- wholly walled off from the prosecution team --- in place to review those potentially privileged materials, a process that takes additional months and can essentially grind a case to a halt until it is finished (because you don't exactly know what your defense theory, or your prosecution theory, is going to be until you have access to all discovery materials). Another example: drama within the defense team. There are fairly liberal rules and practices in place that allow replacement of counsel upon, e.g., a showing of a breakdown in the attorney-client relationship. Replacement counsel then, understandably, needs additional time to get up to speed on the case and make their own independent assessment of what needs to be done. (While there are backstops to this --- defendants cannot churn through lawyers indefinitely --- the legal system has struck a balance between efficiency and ensuring that defendants do get a fair shot at a good defense, so allowing a change or two in Trump's counsel would be in keeping with broader federal criminal court practices.) A third example (which I'd be surprised by in this case given what appears to be the special counsel's approach): the government files new charges (aka a "superseding indictment"), which would certainly cause the court to give the defense more time to evaluate, investigate, and litigate those new charges.
ReplyDeleteThe time for security clearances could be shortened by putting more agents on the project. Wray or Garland could that authorize that.
I wonder why people are so reticent about their ideas concerning Trump winning the Republican nomination & finally winning the White House? It's almost like Trump is some great monster that hangs out in the forest that nobody wants to talk about even through the entire process of planning to go camping & especially while actually camping itself--as if a partial or total silence about him & their future fears concerning him will make him go away or puff him into nonexistence. So now I'm going to break it down because this very act may even get rid of some negative energy we have & maybe even act as a total catharsis.
ReplyDeleteThe following are our greatest fears concerning Trump:
Trump will win the Republican nomination. Trump will beat the Democratic nominee & win the White House. Trump will pardon himself, the Proud Boys, & the January 6th conspirators. Trump will not face any legal responsibilities concerning any actions of himself in the past, present, or future. Because Trump is in office the only state that will want to speedily break away is California. Trump will send troops. Trump will win that fight & make a lesson of California so other states will fall into line & be obedient to Trump. Trump will cater his foreign policy to favor Russia. Trump will become the first Dictator of the United States during or after his second year (in his second term) as president. Trump will disband all progressive & liberal political parties of the USA. Trump will make it so that only Republicans can serve as U.S. politicians. Trump will plunge us all into WW3. A second Dark Age will commence. It will take centuries for the Earth to get back to its former glory because of this second Dark Age.
So that's it. Very depressing stuff, but I hope this process of saying our greatest fears has gotten rid of some of the negative energy that is flowing through all of us at this time.
I follow Michael Popok at Legal AF, a YouTube show. I like him a lot. He says, at the latest, second quarter of 2024.
ReplyDeleteI suspect that it'll take more than a few centuries, Trump or no Trump, for the earth 'to get back its former glory', given the current 6th extinction event, global warming, pollution, and desertification. On a lighter note, I happened to be reading D. H. Lawrence's Collected Poems earlier today, and came upon 'The Mosquito', which contained the following lines:
ReplyDeleteIt is your trump,
It is your hateful little trump,
You pointed fiend,
Which shakes my sudden blood to hatred of you:
It is your small, high, hateful bugle in my ear.
Why do you do it?
Surely it is bad policy.
They say you can't help it.
Thank you for the extended explanation. One question: if the Department of Justice were to expedite security clearances and complete them in two months rather than a year, was not that shorten the time before the trial so considerably that would take place Before the campaign had started? I suppose we shall just have to wait and see.
ReplyDeleteAppellate courts could be authorized to oversee all prosecution and defense motions on an expedited basis. DOJ and FBI could assign a large number of agents to facilitate individual reviews; likewise Intel Agencies could do the same regarding documents. Herculean efforts all to get to an actual trial before the election, but doable where there's a will. Given the implied threats to on-going democracy issues and GOP obstruction, unlikely, but doable.
ReplyDeleteAlso, consider Trump may agree to a plea.
Better scenario is the Georgia prosecution that could derail Trump's winning the election.
I caught on C-Span radio earlier today parts of a House subcommittee hearing (chaired by Jim Jordan) in which John Durham, the special counsel appointed to investigate the FBI's investigation of "Russiagate," was testifying. The Republicans' narrative seemed to be that the source of all division in the country and all evil was the FBI's conduct in how it handled the investigation into the Trump-Russia connection or lack thereof, and by extension the alleged "weaponization" of FBI/DOJ. A couple of the most extreme Republicans, like Matt Gaetz and the rep from Wyoming whose name I don't know offhand (the person who defeated Liz Cheney), sounded as if they were inhabiting a parallel universe. It's not hard, after listening to things like this, to see why Trump's indictment in the documents case has solidified his support with his base.
ReplyDeleteA recent example of Legal AF with Michael Popok and others.
ReplyDeletehttps://www.youtube.com/watch?v=os6WyxNhQRE&ab_channel=MeidasTouch
An excellent source of fact checks and breakdowns of proceedings can be found on Marcy Wheeler's site emptywheel.net or following her on twitter @emptywheel
ReplyDeleteI can't comment on any of the legal proceedings but I have obtained a clearance and worked as a defense contractor for a few years. The process of obtaining a clearance is glacial in pace. My instinct is to disagree with David P that the head of the FBI or DOJ could simply add agents to speed up the process. I could be entirely wrong, but the process is very much that of a grinding bureaucracy which involves multiple federal departments and I'm not sure how much anyone can expedite it.
ReplyDeleteIn the event you would like to read the (public) case filings, LawFare has a site that collects them.
ReplyDeletehttps://www.lawfareblog.com/docket-watch-trump-prosecuted-florida1