On Tuesday, Judge Aileen Cannon, of the Southern District of Florida, said that she simply does not know when Donald Trump will go to trial in her courtroom. Jack Smith, the special counsel, had charged Trump with thirty-two counts under the Espionage Act, for allegedly hoarding national-security documents at Mar-a-Lago, and with another eight counts involving obstruction and false statements. The trial had tentatively been set for May 20th. Now, following Judge Cannon’s order, the prosecutors will have to hope for an update at a “status conference” hearing on July 22nd—which, as it happens, is four days after the Republican National Convention, where Trump will almost certainly get his party’s formal Presidential nomination, wraps up in Milwaukee. Cannon, in her order, said in effect that the whole business of the case has become much too complicated to proceed sooner. Unfortunately, for many reasons—not all of them under Cannon’s control—that may, indeed, be true.
There were, Cannon said, “myriad and interconnected” unresolved issues and “novel and difficult questions,” which made it “imprudent” to proceed sooner. For Smith’s team, these supposed mysteries might be boiled down to a couple of simple questions: Why can’t Cannon just move faster? Why won’t she shut Trump down, when he clearly wants delay for delay’s sake? (If Trump wins the election, he might kill the case.) “Each time the Court sets a new deadline in this case and attempts to keep it moving toward trial, the defendants reflexively ask for an adjournment,” the prosecutors wrote in a filing a few weeks ago. “That must stop.”
That view, though, is too facile, even if the Smith team’s frustration is understandable. Trump’s motives may be obstructionist, and his legal arguments are often outrageous, but he’s also got some nonfrivolous material to work with. There are three other criminal cases pending against him, which, in different ways, pose challenges for this one. Any trial involving classified evidence, as this one does, has an extra layer of complexity, governed by the Classified Information Procedures Act, or CIPA, and there are built-in problems with the Espionage Act itself. It’s not an easy law to decipher, and the fact that the defendant is a former President makes it less so. And Cannon, who was appointed by Trump and has made a number of questionable rulings, is relatively new to the bench.
The complications build on one another, though. For example, Trump and his lawyers can examine certain evidence only in a Sensitive Compartmented Information Facility, or SCIF. (In addition to delays, national-security trials involve a lot of acronyms.) The SCIF in question is in Florida; Trump is currently on trial in New York, for allegedly falsifying business records, which he denies. He has argued that one of his lawyers, Emil Bove, is a crucial part of his legal team in both cases. (Bove and other lawyers obtained security clearances to work with the evidence.) Cannon, in her order, moved one key CIPA-related deadline from this Thursday to June 17th.
On Tuesday, the same day that Cannon issued her order on the timing of the Florida trial, Stormy Daniels, the adult-film actor, took the stand in New York to talk about having sex with Trump at a celebrity golf tournament, including her amusement at the brand of shampoo she saw in his hotel bathroom (Pert Plus). To put it mildly, her revelations are not on par with the facts in the Florida case, in which the interesting items allegedly spotted in a bathroom (this time at Mar-a-Lago) were boxes holding sensitive documents.
The New York trial had gone forward first because Trump’s other trials were delayed for various reasons; with the delays, too, there is something of a negative-feedback loop. Jack Smith’s other indictment against Trump, in Washington, D.C., which is related to January 6th, has been stalled because Trump’s claim that he is immune from prosecution for his “official acts” while President has made it to the Supreme Court. A further delay to the case brought in Georgia by the Fulton County D.A., Fani Willis—in which Trump is charged with a conspiracy to overturn that state’s election results—emerged on Wednesday, when the Georgia Court of Appeals said that it would allow Trump and other defendants to argue again that Willis should be disqualified, because she had a romantic relationship with a lawyer she hired to handle Trump’s prosecution. And so New York moved up in line, and now it, in turn, is contributing to the delay in Florida.
By the time of the July status conference, the Supreme Court should, at any rate, have handed down a ruling in the immunity case, Trump v. United States. Judging from the oral arguments in late April, the Justices are not likely to give Trump everything he wants, but they appear poised, at the very least, to require more proceedings that will delay the D.C. trial. It may not be obvious that such a decision would affect the Florida trial; the documents in question were stored in Mar-a-Lago well after Trump left office. But Trump has argued, in a motion filed in February, that all the Espionage Act charges stem from his alleged initial decision, in his last days as President, to “cause the records to be moved from the White House to Mar-a-Lago,” and that that decision was an immunized official act. Cannon may be stalling to see whether the Supreme Court agrees in any way.
The most difficult aspect of the Florida case, though, may be the Espionage Act itself. Getting a conviction is not as simple as demonstrating that the documents at Mar-a-Lago were marked classified, because the relevant part of the Espionage Act does not actually mention classification. (Trump has been charged under section 793 (e); there is no allegation that he has committed espionage in the vernacular sense of spying.) In fact, although there have been some revisions over the years, the bulk of the Espionage Act dates back to 1917, before there was a classification system, which Truman introduced by means of an executive order. Instead, the act criminalizes “unauthorized” possession of information “relating to the national defense”—now usually referred to as national-defense information, or N.D.I. This is, needless to say, a term that encompasses a lot. There is a body of case law about what N.D.I. may mean, which has developed over the decades—often with reference to classification, although, confusingly, N.D.I. does not have to be designated classified, and things stamped classified are sometimes not regarded as N.D.I.—but the Supreme Court hasn’t spoken to the question in any definitive way since 1941, in Gorin v. United States. And that decision was not a model of clarity: it described “national defense” as “a generic concept of broad connotations.” (I wrote about the Espionage Act’s complexities in a longer piece in 2023.)
Partly as a result of the act’s vagueness, the Justice Department does not prosecute every Espionage Act case it possibly could. If it did, a lot of journalists, who often publish classified information, would be in prison. In the case of Joe Biden, who kept documents marked classified in his Delaware home and office, the decision not to prosecute, according to Robert Hur, the special counsel in that case, turned on another required element of the law: “willfulness.” (My colleague Jeannie Suk Gersen has written about Hur’s reasoning.)
There have, at least, been many Espionage Act cases that Cannon can look to when considering, for example, whether the Mar-a-Lago documents are N.D.I. But Trump’s lawyers have zeroed in on yet another foggy term: “unauthorized.” What does that mean when it comes to former Presidents, who often do continue to have access to classified information, in one form or another? Roughly put, Trump is arguing that he was authorized to hold on to the documents by the Presidential Records Act, which allows outgoing Presidents to designate certain documents as “personal records,” while mandating that they hand over Presidential ones.
There is clearly some Trumpian absurdity here; a document about nuclear secrets, which the prosecutors allege Trump had, does not sound very personal. Even worse, he claims that no court can ever second-guess the personal designation—if a President says that something is personal, it is. By that logic, the P.R.A. itself would become meaningless, because a President could issue a blanket order calling everything in the Oval Office personal. But the prosecutors’ contention—that the P.R.A is irrelevant to the Espionage Act, and that the executive order on the classification system should provide any answers that Cannon needs—has holes, too. For example, what does the law say if something that has traditionally been recognized as a President’s personal record (diaries, perhaps, such as the ones Ronald Reagan kept) also contains classified or national-defense information? Is it authorized? How do the laws interact? To be clear, a P.R.A.-based defense probably wouldn’t (or shouldn’t) ultimately help Trump if the records aren’t plausibly personal; but it is another legal box to check, with the potential for more delay.
Cannon may have further confused matters in March, when she ordered both sides to come up with proposed jury instructions based on hypothetical (and Trump-friendly) uses of the P.R.A.—a somewhat unusual move that led to an angry back-and-forth with the prosecutors. In the end, she declined to dismiss the Espionage Act charges entirely based on the P.R.A. (as Trump wanted), but also refused to rule out the possibility that the jury might get to treat the P.R.A. as a defense (as Smith had demanded). It all might be a lot for any judge, and the disputes in the Trump trial only underscore how overdue the Espionage Act is for a serious examination by the Supreme Court.
Many Espionage Act cases never get to trial; the penalties are harsh, and so defendants have an incentive to arrive at a plea deal. But Donald Trump has no incentive to settle. He’s both angry that he is being prosecuted and aware of how crucial turning the proceedings into a spectacle will be to his electoral chances. Those outside Trump’s circle, meanwhile, have reason to worry about what Espionage Act jurisprudence may look like at the end of this very political year. Trump’s antics aren’t the only messy part of the Florida case. ♦
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