Pretrial filings can be mundane, but like the ongoing protective order litigation, Donald Trump’s latest motion is a proxy battle in the war over delaying his prosecutions.
It’s against this backdrop that Trump’s new motion to exclude 25 days from Speedy Trial Act calculations reminds us that he wants to prolong the matter as much as possible, while special counsel Jack Smith wants the case tried as soon as possible.
As a refresher, the Speedy Trial Act says trials need to start within 70 days. But that doesn’t really happen in practice. For one thing, most cases don’t go to trial. And for the ones that do, it generally takes longer than a few months to get there.
So how is it legal for trials to happen after 70 days? That’s because judges can, and often do, exclude time that would otherwise count under the act. As Trump noted in his motion, filed Tuesday, among the factors that judges consider is the case’s complexity.
Trump’s lawyers wrote to U.S. District Judge Tanya Chutkan:
Here, the sheer number of witnesses and volume of discovery alone warrants a continuance, to say nothing about the issues of first impression that the parties will inevitably have to brief. … For a case of this magnitude, it would be impossible for the defense to evaluate the government’s evidence, prepare its own defense, and participate in pretrial proceedings, all within the time constraints of the Speedy Trial Act.
In highlighting the case’s complexity, Trump wants Chutkan to likewise view the case as complex for speedy trial purposes. It’s significant when judges do so, as we’ve seen in the former president’s other federal case, in Florida, where U.S. District Judge Aileen Cannon sided with the defense’s characterization of the matter as complex — citing the classified documents issue — over the prosecution’s insistence on pushing forward more quickly.
Naturally, a complex case takes more time to get to trial. And to be sure, any defendant should have sufficient time to review discovery, a principle that applies equally to Trump. In terms of the defense motion’s specific request, Trump wants Chutkan to exclude from speedy trial consideration the time from his Aug. 3 initial appearance to the first status conference, on Aug. 28. We may hear more on this from the government in short order, but for now, Trump’s motion relayed that Smith’s team wanted Chutkan to know: “The Government’s position is that the ends of justice are best served by a speedy trial. The Government will respond more specifically once it has the opportunity to review the defendant’s motion.” Trump’s filing comes as the Justice Department prepares to tell Chutkan its proposed trial date in a brief due by Thursday, the day before the judge hears argument Friday over the protective order. There, too, the otherwise mundane litigation happens against the the backdrop of the ticking clock, as prosecutors want a protective order in place before turning over discovery evidence, which, as Trump’s filing said, is voluminous. The quicker the evidence gets to Trump, the quicker a trial can happen. So while it’s still early on in Trump’s latest federal indictment, litigation over seemingly routine matters this week and later this month will reveal important clues about where it’s headed.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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