Experts raise concerns about Cannon’s trial date — but "master chess player" Jack Smith has a plan

Judge Aileen Cannon set a May 2024 trial date — but it's not likely to stick

By Igor Derysh

Managing Editor

Published July 24, 2023 8:52AM (EDT)

Jack Smith and Donald Trump (Photo illustration by Salon/Getty Images)
Jack Smith and Donald Trump (Photo illustration by Salon/Getty Images)

The Trump-appointed judge overseeing his Mar-a-Lago documents case set a trial date for May 2024 but legal experts are skeptical that it will stick.

U.S. District Judge Aileen Cannon, who is facing added scrutiny after issuing a series of pro-Trump rulings earlier in the documents probe that was overturned on appeal, scheduled the former president's trial for May 20, rejecting his lawyers' request to delay the trial indefinitely while setting the date well after the December start sought by special counsel Jack Smith.

Though the schedule denied Trump's bid to push the trial until after the election, former U.S. Attorney Joyce Vance warned that the date could still be pushed back due to delays.

"If Judge Cannon were to decide that... a delay in the trial date was necessary, it's unlikely that would mean the trial would get pushed back a few days, or a week. That's because federal judges don't usually have big open blocks of time on their calendar," Vance explained in a Substack post.

"Setting a new date would mean looking for open space on the Judge's calendar. Trump's lawyers said the trial would take months, but even if we go with the government's more reasonable suggestion of weeks, a delay could easily move the trial back until after the election," Vance wrote.

"While Judge Cannon may have deemed it unnecessary to consider the 2024 election at 'this juncture,' that doesn't mean she won't revisit her decision down the road and permit Trump to campaign instead of appear in court," she added. "But even mundane delays could derail the speedy trial the special counsel has worked so hard to obtain here."

But Smith last week sent a letter to Trump informing him that he is the target of the Justice Department's Jan. 6 probe, signaling another likely indictment in D.C., where judges are less likely to cede to his delay tactics.

"Jack Smith is a master chess player," Norm Eisen, who served as Democratic counsel during Trump's first impeachment, told CNN. "He's been doing this for a very long time. So now with the target letter in the 2020 election interference case, in case… that trial slips, what does Jack Smith do? He's going to file in D.C., a very favorable bench, great jury pool for him. Says, fine, Judge Cannon, you want to move that trial, we'll just slide in the 2020 election interference trial and we'll do that before the election."

Smith's letter to Trump reportedly indicated that he may be charged with violating a civil rights statute that makes it a crime to "conspire to injure, oppress, threaten, or intimidate any person" in the "free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States."

Former U.S. Attorney Barb McQuade called it a "really brilliant move" by Smith because "they can make out this case without proving that Donald Trump knew he had lost the election and for conspiracy to defraud the United States."

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"As long as you can show that he was trying to do an end run around the process, you can show a violation of this statute. For example, asking [Georgia Secretary of State Brad] Raffensperger to find 11,780 votes. He may have genuinely believed that he somehow earned them because some had been stolen, etc., but he knew that process wasn't the way you do it," McQuade explained, adding that it "could be a really good statute because if a jury does not find that the government has proved that Donald Trump knew he had lost the election, they can still win under the statute."

Trump is already facing a Manhattan trial in the Stormy Daniels hush-money case and is widely expected to be indicted in Fulton County District Attorney Fani Willis' investigation into efforts to overturn the 2020 election in the state.

"There's a lot going on. I would say that I actually think this is a very difficult challenge for Trump's legal team," former federal prosecutor Renato Mariotti told CNN. "To use Fani Willis as an example, she can be focused like a laser on how to prove their case in Fulton County. But Trump's lawyers, when they're defending that case, have to consider whether their actions or statements are going to trouble the other cases. They're trying to fight a war on multiple fronts. It's always challenging for the defense. I think their job is getting harder and harder."

By Igor Derysh

Igor Derysh is Salon's managing editor. His work has also appeared in the Los Angeles Times, Chicago Tribune, Boston Herald and Baltimore Sun.

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Aggregate Aileen Cannon Donald Trump Jack Smith January 6 Mar-a-lago Politics