Trump was charged with 37 felony counts in June following an investigation by special counsel Jack Smith, who wrote in the indictment that Trump unlawfully took classified records when his presidency ended in 2021, then obstructed the government’s efforts to retrieve hundreds of the secret documents. Trump has pleaded not guilty to all charges.
Tuesday’s hearing is the first before Judge Aileen Cannon, who has set a mid-August trial date that is expected to be moved due to the unprecedented questions that come with deciding how attorneys and the jury will view the classified materials involved in the case.
The government has asked that the trial begin in December. Trump’s lawyers want the trial to be indefinitely postponed, citing the potential interference with Trump’s ability to campaign for the 2024 GOP presidential nomination.
Trump was not expected to be present for the hearing, but co-defendant Walt Nauta, an aide to the former president who is charged with obstructing government efforts to recover the documents, was seen arriving shortly before it began.
The hearing is focused on how the national security law known as the Classified Information Procedures Act will affect the case. Attorneys will discuss how Trump and Nauta’s due process rights will be upheld alongside the national security interests in the highly classified materials that the FBI recovered from Trump’s Florida home nearly two years after he left office.
According to the indictment, among the recovered documents are some of the country’s most closely held secrets, including details on U.S. and foreign nations’ nuclear and other defense capabilities, potential vulnerabilities of the U.S. and its allies to military attack, and plans for possible retaliation in response to such an attack.
The judge will decide what the government is obligated to share in discovery and what is ultimately admissible at trial. If the government disagrees with how the judge rules on a particular classified discovery issue, they have the ability to appeal.
Close attention will be paid to how Cannon, a Trump appointee, rules. She was criticized for ruling last year to assign a special master to review the classified records and other material removed during the FBI search of Trump’s estate and determine if anything should be returned to Trump. Her rulings, which delayed the investigation for several weeks, were overturned by the U.S. 11th Circuit Court of Appeals, which said that she never had the legal authority to intervene.
On Monday, Smith filed a motion for a protective order over classified information the government hands over in discovery, which is intended to prevent any unauthorized disclosures of evidence reviewed over the course of the case.
Prosecutors wrote that Trump’s team objects to some elements of the proposed order, but did not specify which parts. The special counsel also said in the legal filing that it has already handed over two tranches of documents related to evidence obtained through subpoena, search warrants and witness interviews.