Judge in Trump Documents Case Draws Attention for Slow Pace


Two and a half weeks after holding a hearing to pick a trial date in the classified documents case against former President Donald J. Trump, Judge Aileen M. Cannon still has not decided when the proceeding will begin.

Part of the problem is the case itself, which is inherently complex.

But Judge Cannon, who has been on the bench for only four years, has done herself no favors by allowing a logjam of unresolved issues to build up on her docket. That pileup appears to have kept her from reaching a prompt decision on the timing of the case even though the defense and prosecution have both informed her that they believe the trial can start this summer.

While the lack of a trial date is arguably the most important issue pending before her, it is one of several things that Judge Cannon has done, or not done, that have stirred concern about her decision-making.

On Monday night, for instance, she issued a curious order asking Mr. Trump’s lawyers and prosecutors in the office of the special counsel, Jack Smith, to send her dueling jury instructions about two of the former president’s defenses in the case. She had already rejected one of them and seemingly rebuffed the other at a hearing last week.

Her interest in jury issues was somewhat strange because it came before she had decided when the trial would start. But it was doubly unusual because it seemed to embrace one of Mr. Trump’s most brazen defenses, leaving open the possibility that she could let the charges go to trial and then move to acquit the former president near the end of the proceeding by declaring that the government had failed to prove its case.

Even a seasoned jurist might have trouble laying out the timeline for a case requiring intricate litigation involving how to handle the classified material Mr. Trump is charged with taking. It would also be a challenge for any judge to adjust that schedule to his busy campaign calendar and his obligations to attend proceedings in his three other criminal cases.

Still, some legal experts said the slow pace of Judge Cannon’s decision-making and the confusion accompanying her conduct of the proceeding were indications of Judge Cannon’s inexperience and the ways in which Mr. Trump’s lawyers have been able to capitalize on it.

Judge Cannon, 43, was nominated to the federal bench by Mr. Trump in the final months of his term. She had been a federal prosecutor before that, mostly handling appellate matters. At the time she was assigned to oversee the classified documents case last year, she had handled only four criminal cases that had gone to trial.

“Based on what we know about her professional biography, this judge is completely inexperienced with complex criminal litigation, and this is a case in which complexity is inherent because of the national security aspects,” said Samuel Buell, a former federal prosecutor and a law professor at Duke University.

“Then you have sophisticated defense counsel who are more than capable of multiplying that complexity,” he said, adding that they could do so “knowing that at some point she is going to essentially be drinking through a fire hose.”

It is, of course, impossible to know what Judge Cannon might be thinking in the privacy of her chambers in Federal District Court in Fort Pierce, Fla. But the backlog of issues on her plate in the Trump case, while confusing to follow, can at least be glimpsed on the public record.

It is likely that, before she decides the schedule of the trial, Judge Cannon is waiting to rule on another motion filed by Mr. Trump: his unusual request for additional discovery materials in which he sought to blame the intelligence community for framing him.

It would make sense to decide that motion first, given that as part of it, Mr. Trump’s lawyers asked Judge Cannon for an expansive hearing on whether the nation’s spies and other national security officials were part of the team that prosecuted him. If the judge is inclined to grant the hearing, it would take some time and have an obvious impact on the overall schedule of the case.

Yet before she rules on the discovery request, she seems to be waiting to make a decision on an ancillary motion: one that concerns Mr. Trump’s unusual attempt to file an unredacted version of the discovery papers that would reveal the names of nearly two dozen government witnesses.

Prosecutors have asked Judge Cannon to keep the names under seal, concerned that if they were made public, the witnesses could be subject to threats or harassment. But even though the prosecutors made their appeal more than a month ago, Judge Cannon has not yet addressed it.

As if this tangled web of unresolved issues and delays was not enough, Mr. Trump’s lawyers made a new request for extra time just last week.

The lawyers asked Judge Cannon for an additional 10 days to file papers related to their multiple efforts to have the case dismissed. One of the reasons they cited for needing the delay was that the judge had not yet ruled on their discovery motion — one of the filings caught in the logjam.

So far, Mr. Smith has not complained too loudly about any of this. But at a hearing in Fort Pierce in early March, one of his chief deputies, Jay I. Bratt, asked Judge Cannon to speed things up a bit in an effort, as he gently put it, “to keep this case moving along.”

The judge seemed to bristle at Mr. Bratt’s request.

“I can assure you,” she replied, “that in the background there is a great deal of judicial work going on.”

Some legal experts, however, have questioned that work, pointing not only to the judge’s failure to set a trial date, but also to her more recent order about jury instructions.

In that order, Judge Cannon asked the defense and prosecution to help her hone for the jury the definition of a key phrase in the Espionage Act — the central statute in Mr. Trump’s indictment — that makes it a crime to have “unauthorized possession” of certain sensitive government records.

Mr. Trump has argued for months that he was fully authorized to have the documents he removed from the White House because under a different law, the Presidential Records Act, he had converted the materials in question from official documents to personal ones.

But at a hearing in Fort Pierce last week, Judge Cannon seemed skeptical of that argument, saying it would “gut” the Presidential Records Act. The act was put in place after the Watergate scandal not to permit presidents to lay unfettered claim to documents from their time in office, but for the opposite reason: to ensure that most remained in the possession of the government.

Still, despite her initial qualms about Mr. Trump’s claims that he had turned the documents into his own personal property, Judge Cannon seemed to entertain the idea anew in her order about jury instructions.

One of the scenarios she asked the defense and prosecution to consider was whether “a president has sole authority under the P.R.A. to categorize records as personal or presidential during his/her presidency.”

Margaret Kwoka, a law professor at Ohio State University, said Judge Cannon’s order was unusual because she seemed to be asking the two sides to provide her with different jury instructions for different interpretations of the law instead of deciding on the law herself and then seeking instructions for the jury.

“What’s weird about this order is it appears to kick the can down the road,” Professor Kwoka said. “This is such a strange way to approach this problem.”

Eileen Sullivan contributed reporting.



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