Former President Donald Trump was indicted last week on 37 federal charges stemming from classified documents he kept at Mar-a-Lago. But will the wheels of justice now move quickly or grind to a halt? It’s in Trump’s interest to delay his trial as long as possible, for reasons that go beyond simply evading punishment. For one thing, a guilty verdict could harm his political standing, even if it appears right now that his GOP support isn’t going anywhere. For another, if Trump can push things off until after next year’s election, a pardon might be forthcoming — from himself or a sympathetic fellow Republican. With previously Trump-friendly federal judge Aileen Cannon in charge, there’s a real possibility that the former president could catch some legal breaks regarding timing. To gauge the likelihood of this possibility, I spoke with Brandon Van Grack, a national-security lawyer in private practice who worked on high-level national-security matters at the Department of Justice for a decade, including as a lead prosecutor for the Mueller investigation. After our conversation, on Tuesday morning, Cannon set a preliminary trial date for August 14 — though few expect that date to hold.
I’ve seen a lot of speculation from people about the timing of this case. Some predict it’ll unfold relatively quickly, others that it might drag on and on. You said on MSNBC recently that “the federal government or the Department of Justice can bring this case by the end of the year.” How confident are you that that’ll actually happen?
The Department of Justice is capable of bringing this case by the end of the year, even though there are numerous motions the defense counsel is anticipated to bring, and additional procedures to go through with respect to the classified documents. This is not the type of case where there are millions of documents to review. There certainly is some paper, but there aren’t terabytes of emails and text messages that are going to be at issue. And if you think about the core issue in the case, there’s a simplicity to it. There are 31 documents. It’s a narrow window of time. They were not turned over in the way that they should have been. And there were efforts to obstruct the ability of the government to get them.
So I think you’re going to see the Department of Justice make every effort to bring it as quickly as possible. Now, whether that happens or not is going to be largely dependent on the judge, and how much she pushes to bring this case as quickly as possible.
Obviously Judge Cannon was very favorable to Trump when she handled this case previously. Nobody really knows what she’ll do this time around. From Jack Smith’s perspective, what is the worst-case scenario? How much could she delay the proceedings?
The judge has incredible authority to control the timing. And, like I said, there are going to be procedures and litigation with respect to the classified documents. You’re already seeing defense counsel indicating reasons why there should be delay.
You had a Twitter thread on that topic. It sounds like the involvement of classified documents will mean a pause no matter what.
It could, but the point is it doesn’t have to delay it a year — it’s just another step in the process. But the judge would be able to delay the government’s ability to bring it within a year. That would be under her discretion.
I think a really important point to layer on top of all this, since 2024 is an election year, is that right now, this indictment is just allegations. These aren’t facts. They’re allegations, which the government says it has facts to support. There should be agreement on all sides, and among the public, that we should all want all of these facts — as well as what a jury thinks about those facts — out as quickly as possible, because they could influence the election. So you would want them out before as opposed to after.
Is there any chance that Cannon will say, “This all has to wait until after the election”? Could something that extreme happen?
We don’t know. I would be surprised if a decision like that is made so early in this process. The judge has issued an order to get defense counsel names so they can start getting security clearances. I think you’re going to see the government move very quickly the rest of June, potentially to provide its discovery or the lion’s share of its discovery. They’re going to move soon to begin the procedures for handing over classified documents. And I would be surprised if the judge and the parties involved just gave up. I think they’re going to try to move with all deliberate speed, and they should move at deliberate speed. But again, the judge ultimately is going to be the one with significant discretion in terms of how hard to push it.
If Cannon starts issuing a bunch of bizarre rulings that delay the proceedings indefinitely, it seems like there’s not much recourse for the government. Am I right that getting her off the case in the middle of the trial would be nigh on impossible?
What the Department of Justice can do is produce material as quickly as possible, respond to requests and motions as quickly as possible. Regardless of deadlines set, there are ways to try to expedite this. It wouldn’t surprise me if the judge sets a particular deadline for some sort of submission and the government does it days before that deadline. Many deadlines are not necessarily set in stone. This process can be fluid — sometimes rulings are made or motions are made that do fundamentally impact a case, and what you thought was something that could be done next month now has to be moved.
More often than not, the dates set for trial and for pretrial motions are moved. It is really early to predict how long this will take — I think we’re all trying to assess the motives and strategies of the parties here. But what I do think, at least with respect to the Department of Justice, is that they will try to bring it as quickly as possible. And I think importantly, the case can be brought by the end of the year. Again, just because Espionage Act cases often take a year or more to bring, doesn’t mean they have to. Sometimes the prosecutors on those cases have dozens of other cases, so they’re the ones who cannot bring it within six months. Here, for the prosecutors on this case, this is their only one.
Jack Smith only has the January 6 case besides this — just that small piece of business …
No, no, Jack Smith has that, but the prosecutors on this case, this is their only one. And so they’ve already probably prepared most of the discovery. They’re some of the most experienced attorneys on handling classified information litigation. They could have a pretrial hearing on that next week. They’ve already done their review. So the point is they have the resources and the focus to bring this case in ways that typically, U.S. Attorney’s offices don’t have.
As this case unfolds, Trump may get indicted again, over January 6 or from the Georgia state investigation into his election-interference efforts. How could action in those cases affect this one?
It’s another potential avenue for delay, but often, it’s a situation where agencies might — not coordinate efforts — but might delay activity to allow one in prosecution to proceed first. And so it becomes a little bit more orderly. But yes, those are certainly actions that could delay the case here.
One other choke point that I was thinking of is jury selection, which seems like it might be very complex in this case, given the defendant. I mean, how hard is it going to be to find 12 jurors who claim to have no preexisting bias about all this?
The delay in this case in terms of when this is brought isn’t going to be based on jury selection. That’s not my way of saying jury selection is easy. There will be a very large pool, there will be extensive questioning. But that is not a process that delays this by months. That’s a process that delays this by many, many days. And if we’re at jury selection, well, the process is done now. It’s over. We have a long way before we get there. But the question of how long the trial will go almost feels like a tertiary question compared to: What has to be navigated before we get there?
So the actual trial itself will probably be fairly speedy.
The government has already said it would take them 21 days. So that doesn’t mean “short.” But the point is that the potential for delay isn’t complications at trial — it’s navigating pretrial.
It sounds like they probably brought this case in the way they did — with just those 31 documents — in part because of the simplicity of it. It seemed to me that there was more they could have used, but didn’t.
Thirty-one is still a big number. Let’s not walk away from that. But I would say the charges here are compact. The core conduct at issue is probably a three- to four-month window. There’s certainly a narrative here in terms of what happened with respect to the archives document. But really, the story begins with the subpoena. So you’re not talking about years of conduct, you’re not talking about evidence that’s housed overseas. The government’s investigation is done. They’ve already done litigation in terms of accessing material of the former president’s attorneys to the crime-fraud exception. There’s been extensive work. So they can do it. They really can. It doesn’t have to be complicated.
This interview has been edited for length and clarity.
