The defendants in former President Donald Trump’s Mar-a-Lago documents case are asking the judge in charge to push back yet another set of looming deadlines related to discovery.
For several months now, the government, the defendants and court have been arguing over the extent to which each side will need access to, can access, and ultimately view discovery information, which is subject to the Classified Information Procedures Act or CIPA.
Special Counsel Jack Smith has argued for something not entirely unlike complete secrecy when it comes to CIPA issues — at one time asking the court to keep the “number of categories of classified information” the government sought to delete from discovery away from the public. U.S. District Judge Aileen Cannon, however, denied that request in favor of public access.
While those more basic access issues — enshrined in and confined to CIPA Section 4 — were more or less decided earlier this year in Smith’s favor, the parties are now in a motions dispute about the disclosure deadlines contained in a separate section of the law.
The heart of the matter concerns what classified information defense counsel can actually use and disclose during trial — all of which is subject to a mandatory notice requirement under CIPA Section 5.
In early April, Cannon set a May 9 deadline for those disclosures — also instructing the defendants to disclose potential expert witnesses they intend to call during trial and the subject matter of their expertise.
On May 1, one of Trump’s co-defendants, his personal valet Waltine “Walt” Nauta, asked the judge for more time on both points.
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To hear the defense tell it, the government has been unnecessarily pushing to speed the case up and force the defense into a quick trial — despite the absence of statutory support for such speed.
“The Special Counsel’s Office has incessantly sought deadlines in this matter that belay the readiness of the case,” the filing reads. “Thus, in November, the Special Counsel’s Office requested that this Court set a ‘near-term date’ by when the Defendants would be required to submit notice pursuant to CIPA § 5(a), despite acknowledging that so-doing would likely require repeated disclosures. And in their January expert disclosure, the Special Counsel’s Office asked this Court to require the Defendants to submit their own expert notices a mere two weeks later, despite no such requirement.”
A trial date in the case has yet to be scheduled. Under CIPA, a defendant must provide the relevant notices “within thirty days prior to trial.” Under the federal rule governing expert witnesses and evidence, the court has wide discretion to issue deadlines that ensure each side provides notice “sufficiently before trial to provide a fair opportunity” for the opposing party to “meet” such evidence.
The defense also claims the government has not properly indexed certain allegedly classified documents recovered from Mar-a-Lago which are “necessary for defense counsel to make either disclosure.”
“Although the Special Counsel’s Office has indicated it will work with defense counsel to accurately produce an index cross-referencing the purported documents with classification markings produced in classified discovery as against the slip sheets now in the physical boxes, that process will take time,” the filing continues. “Until that process is complete, however, defense counsel cannot know for certain which documents produced in classified discovery were recovered from boxes in the Storage Room nor where those documents were found in the boxes. Accordingly, defense counsel cannot meaningfully identify, pursuant to CIPA § 5(a), the classified information it anticipates being disclosed at trial.”
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At this point, the defense argues, scuttling the upcoming notice deadline will not have any impact on when the trial starts.
And, the defense says, everyone has working toward that end.
“Of course, there can be no doubt that the parties — and the Court — have methodologically proceeded toward trial readiness over the course of the last few months,” the defense filing goes on.
The motion asks the court to vacate its own prior order setting the May 9 deadline and, in the event the government says the requested indexing is not their job or not relevant to the deadlines, the defense wants to have a hearing dedicated to such issues.