The federal classified documents case against former President Donald Trump could extend well beyond the 2024 election and have some already considering whether the case itself will influence the outcome in a way that diminishes his chances.
“The thorny issues raised in the classified documents battle, combined with Trump’s penchant for aggressively challenging suits, suggests a long-term fight that may not even end before Election Day next year,” The Hill reported on Monday, adding that the case will be tried before U.S. District Judge Aileen Cannon, a Trump appointee.
“It’s going to be very difficult to bring a case like this to trial within the year, given the highly sensitive classified information at issue,” Brian Greer, a former CIA attorney, told the outlet.
“Plus, Trump is going to seek every delay possible. If Judge Cannon goes along with these delaying tactics, we’ll be looking at a trial in 2025 at the earliest,” Greer added.
The indictment against Trump, concerning his handling of 31 highly classified documents, demonstrates the determination of special counsel Jack Smith and the Justice Department (DOJ) to pursue the case vigorously. However, this approach raises the challenge of effectively handling the classified material during the discovery process and presenting it to the jury, the outlet noted.
According to Brandon Van Grack, a former top national security lawyer at the DOJ, the high-level breakdown of the records suggests that the Justice Department did not focus on selecting “Goldilocks documents” – documents that are sensitive but not overly so – which would have been easier to handle during the trial.
“These appear to be even more sensitive than your typical retention case, and what I would think from that is that the intelligence community very much is also focused on the fact that they view the conduct here as something that was potentially harmful and damaging to national security. So they’re taking it just as seriously as the Department of Justice is taking it,” he told the outlet.
Obtaining security clearances for Trump’s attorneys alone is expected to be a time-consuming process. Even with an expedited approach, it could still take several weeks to complete. Judge Cannon instructed Trump’s attorneys to initiate the clearance process by no later than Tuesday.
Additionally, the discovery process, during which the parties exchange evidence for trial, will provide opportunities for Trump to raise challenges, The Hill added.
Cases that involve classified documents follow a distinct discovery process governed by the Classified Information Procedures Act (CIPA). The act outlines specific guidelines regarding what information must be shared with the defense, setting narrower grounds for disclosure compared to standard procedures.
“Instead of just being relevant, it needs to be relevant and helpful to the defense,” Greer said.
A significant pretrial conflict may arise during the stage outlined in Section 5 of the Classified Information Procedures Act (CIPA), which mandates defendants to inform the government about any classified information they intend to present during the trial. The requirement sets the stage for potential disputes and discussions between the defense and the government.
“Trump’s team will likely argue that the CIPA Section 5 notice requirement is unconstitutional, because it requires them to give some sort of notice of their defense to the government. That argument has been resoundingly rejected by the courts, but it will still be made by the Trump team,” Greer predicted.
Another probable point of contention is the potential use of the silent witness rule by the DOJ. This rule allows experts to provide testimony in general terms regarding classified records, avoiding the need for their declassification or public disclosure, The Hill added.
Experts also said that Trump’s attorneys may attempt to force the government to declassify the most sensitive documents in hopes that DOJ will drop at least some charges.