Where Trump’s classified documents case stands after judge indefinitely postponed start

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• Amna Nawaz:

  After months of delays and closed-door hearings, the classified documents case against former President Donald Trump has been officially and indefinitely delayed by Judge Aileen Cannon.

  Our William Brangham takes a deeper look now at where things stand — William.

• William Brangham:

  Amna, this is considered the strongest, clearest-cut case against the former president. Trump is charged with 40 counts of taking classified documents and obstructing efforts to get them back.

  Special counsel Jack Smith's indictments show boxes full of highly secret materials sitting unsecured in ballrooms and bathrooms and closets at Trump's private club and home, Mar-a-Lago. There's an audio recording of Trump admitting he still retained classified war plans.

  Smith alleges Trump tried to destroy video evidence of how the documents were moved around to evade federal investigators. But now a trial that was supposed to start in two weeks is indefinitely on hold. Critics blame the judge overseeing this case, Aileen Cannon, who was appointed by Donald Trump, for pushing this case well past the election.

  Mary McCord is director of Georgetown University's Institute for Constitutional Advocacy and Protection. She is also a former Justice Department official.

  Mary, so good to have you back on the program.

  Do you think that this is a fair accusation, that the principal reason that this case is now likely not going to ever get tried before this election is because of the judge? And, if so, what's your evidence for that?

• Mary McCord, Former Justice Department Official:

  I'd say it's a combination of the delay strategy by Mr. Trump and his co-defendants and a judge who has accommodated that strategy and actually allowed that strategy to be successful.

  I mean, she is also a judge that lacks experience handling a case that involves classified information. That does add a layer of complexity to a case because there is a procedure, actually under the law called the Classified Information Procedures Act, or CIPA, for adjudicating how you're going to deal with classified information in a case like this, what needs to be produced to the defendants, what the defendants can use at trial.

  There's a procedure for all of that. That does add to complications. Nevertheless, the deadlines for the CIPA proceedings, as well as deadlines for other hearings, she has consistently accommodated Mr. Trump's delay tactics and pushing those deadlines off.

  And, in fact, a deadline for a critical CIPA Section 5 hearing was supposed to be this week, is now put off until the middle of June, with the government's response for the next CIPA hearing put off until about this time in July, mid-July. So we're talking about just adding significant delay, whereas judges with more experience in these matters would have moved them more quickly.

  I'd say there's also a number of motions that she could have ruled on based on the papers, but instead has scheduled hearings and scheduled those hearings far out after the briefing has been completed.

• William Brangham:

  I mean, devil's advocate, though, judges have an enormous amount of discretion to dictate the pace and flow of their cases and hear what arguments they think are relevant and meritorious and which are not.

  I mean, couldn't this all be well within the bounds of what is appropriate and legitimate?

• Mary McCord:

  Well, I guess what I would say is I would expect a judge with more experience to move these matters along more expeditiously and also to not give so much airtime and so much play to arguments that are relatively frivolous.

  So, I mean, judges — you are right — they have a lot of discretion over their courtroom. But there is a Speedy Trial Act too. And that Speedy Trial Act is not only for the benefit of the defendants.It's also for the benefit of the public in assuring that justice is done in a way that does not involve delay.

  And, in fact, in making today her order in definitely postponing even scheduling a trial, she had to make findings that this was in the interest of justice under the Speedy Trial Act, because she is, in fact, going well beyond what the Speedy Trial Act would otherwise allow. And she recognized that and made those findings.

  So, you're right, there's a lot of discretion. But there is also a requirement under law that cases move along, especially criminal cases, because there is a public interest and not just a defendant's interest in a speedy trial.

• William Brangham:

  Some of the critics of Judge Cannon have argued that, because of her behavior and some of the things that you have been describing, that special counsel Jack Smith ought to push to get her to recuse herself and, if she refuses, to appeal to the 11th Circuit.

  Do you think her actions merit recusal at this point?

• Mary McCord:

  So, I think that it's been — there hasn't been the type of ruling that I would say with confidence that Jack Smith could take up on a motion to recuse, that, if she were to deny that, he could successfully take that up on appeal.

  And that's because, in many ways, she has not made definitive rulings on things. In fact, in denying motions of Mr. Trump to dismiss the case on grounds like Presidential Records Act and other grounds, she's often left open the door for these issues to be revisited later. So, she's denied them without prejudice, meaning, at this time, but I will revisit this later.

  So, these are sort of not rulings that he could easily take up and saying she made such a clear violation of law here, what she did was sort of indisputably wrong, that — and it shows a bias, and she should be recused.

  I think he's waiting, frankly. I mean, it's an extraordinary move, and if you do it, you do not want to lose that, right, and end up right back in front of that judge. So, I don't think the time has been quite right for that yet. And if there is a ruling, particularly in these CIPA hearings, an adverse ruling, that is something the government can appeal under the CIPA procedures.

  And depending the scope of that ruling, that might be something that also comes along with it a motion to recuse.

• William Brangham:

  All right, Mary McCord, as always, thank you so much for helping us get through these legal matters.

• Mary McCord:

  My pleasure.