Trump’s delay tactic may backfire as Jack Smith pulverizes "faulty" attempt to push trial to 2026

Smith's team called out Trump's lawyers over "skewed" analysis and "inappropriate" and "exaggerated" claims

By Igor Derysh

Managing Editor

Published August 22, 2023 10:45AM (EDT)

Special Counsel Jack Smith makes a statement from the Special Counsel office in Washington on Thursday, June 9, 2023.  (Tom Brenner for The Washington Post via Getty Images)
Special Counsel Jack Smith makes a statement from the Special Counsel office in Washington on Thursday, June 9, 2023. (Tom Brenner for The Washington Post via Getty Images)

Special counsel Jack Smith's team pushed back on former President Donald Trump's effort to delay his D.C. election conspiracy trial until 2026 over the amount of evidence to be turned over in discovery.

Molly Gaston, a prosecutor on Smith's team, said in a filing on Monday that Trump's lawyers incorrectly suggested that cases involving conspiracy charges typically take 29.4 months to reach a conclusion, noting that the analysis was skewed by drawing from cases between September 2021 and October 2022, a time frame in which just 22 cases went to trial amid the COVID pandemic, according to Politico.

"This small and skewed sample provides no help to the Court in deciding an appropriate trial date," Gaston wrote. "The question here is when it is appropriate to start trial in this case, and statistics regarding the length of time from indictment to sentencing in other … cases have no bearing on that decision," she added.

Prosecutors also pushed back on Trump's team's claim that it needed three years to review the evidence turned over in discovery. Trump's lawyers said the pages of evidence are "taller than the Washington Monument, stacked on top of itself eight times, with nearly a million pages to spare."

"The defendant cites inapposite statistics and cases, overstates the amount of new and non-duplicative discovery, and exaggerates the challenge of reviewing it effectively," Gaston wrote, arguing that there is no need to individually review all of the 11.5 million pages of evidence.

"In cases such as this one, the burden of reviewing discovery cannot be measured by page count alone, and comparisons to the height of the Washington Monument and the length of a Tolstoy novel are neither helpful nor insightful," she added.

Gaston also noted that nearly half of the evidence turned over by prosecutors has long been available to Trump's legal team, including 3 million pages of documents obtained from Trump entities, a million pages publicly available from the House Jan. 6 committee's investigation and hundreds of thousands of pages that came from the National Archives. The remaining pages will be delivered in digitally searchable format, Gaston wrote, including three million pages of documents obtained from the Secret Service.

Smith has proposed starting the trial on January 2, 2024, a short period of time that he justified by citing his efforts to organize evidence to turn over to Trump's team and the public's right to a speedy trial.

"[T[he Government took on the task of providing the defense a set of key, organized documents that the Government views as some of the most pertinent to its case-in-chief," Gaston wrote in Monday's filing. "The Government provided these materials in load-ready files so that the defense can review them quickly in the same manner as the Government did — through targeted keyword searches and electronic sorting."

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"The defendant's proposed trial date, however, rests on the faulty assertion that it is necessary for a lawyer to conduct a page-by-page review of discovery for a defendant to receive a fair trial," Gaston added. "But the defendant can, should, and apparently will adopt the benefits of electronic review to reduce the volume of material needed to be searched and manually reviewed."

Former federal prosecutor Glenn Kirschner on MSNBC noted that U.S. District Judge Tanya Chutkan, who is overseeing the case, warned Trump's attorneys at an earlier hearing that she may accelerate the trial date if Trump says or posts things that interfere with the court's ability to pick a fair and impartial jury, which Kirschner alleged Trump had already done.

"I also think when the defense team, Trump's defense team, throws out a date that is two and a half to three years down the road, April 2026, it shows that they are not really engaged in legitimate lawyering," he added. "It really feels like they are assistant campaign chairman at this point. That will help, I think, push Judge Chutkan to an earlier trial date if they are not trying to legitimately present a trial date that is an honest assessment of how much time they think they are going to need."

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 Donald Trump Jack Smith Molly Gaston Politics Tanya Chutkan