Judge Aileen Cannon, pictured left (U.S. District Court for the Southern District of Florida); (right) Judge Maryellen Noreika (U.S. District Court for the District of Delaware)
While one federal judge appointed by Donald Trump has swiftly rejected Hunter Biden’s “immunity” and vindictive prosecutions claims and ordered up trial in early June, another has left Trump’s Mar-a-Lago trial date anyone’s guess and repeatedly pushed back deadlines, creating a situation where there may be no Espionage Act trial this year and may never be a trial at all if the defendant wins the 2024 election.
With all of the talk of “two-tiered justice,” it’s worth noting that President Joe Biden’s son is being prosecuted far quicker by the Special Counsel’s Office — whether in the Delaware gun case or the California tax prosecution — than former President Trump is in his Espionage Act and Jan. 6 federal cases.
Hunter Biden was indicted on gun charges in Delaware last September after a plea and diversion agreement fell apart and David Weiss was appointed as special counsel by U.S. Attorney General Merrick Garland, who in turn was appointed by President Biden. Since that time, the defendant and his lawyers filed a slew of motions challenging the indictment on multiple grounds, raising claims of “immunity” under the scuttled diversion agreement, claims of selective and vindictive prosecution, and claims that Weiss’ was unconstitutionally appointed.
In April, U.S. District Judge Maryellen Noreika rejected Biden’s arguments one by one, even panning the selective prosecution claim as “nonsensical.”
“To the extent that Defendant’s claim that he is being selectively prosecuted rests solely on him being the son of the sitting President, that claim is belied by the facts. The Executive Branch that charged Defendant is headed by that sitting President — Defendant’s father. The Attorney General heading the DOJ was appointed by and reports to Defendant’s father. And that Attorney General appointed the Special Counsel who made the challenged charging decision in this case — while Defendant’s father was still the sitting President,” the judge noted. “Defendant’s claim is effectively that his own father targeted him for being his son, a claim that is nonsensical under the facts here.”
After Hunter Biden’s lawyers responded to the resounding defeat by attempting an interlocutory appeal, which Weiss slammed as a “frivolous” delay tactic, the Third Circuit unanimously tossed the appeal out the door, good news for a special counsel concerned that the June 3 trial date was in jeopardy.
If there was any doubt about the trial date, Noerika cleared that up on Tuesday, refusing Biden’s request to push the trial date back to September, remarking, “everyone can get done what needs to get done.” In short, Biden is, as of now, slated to stand trial in Delaware within a year of his gun indictment (and in California, trial is currently set for June 20; the tax indictment dropped in December) because the judge saw through defense delay tactics and acted accordingly.
That development was immediately viewed through a “Paging Judge Cannon” lens, though there are differences in the nature and number of the charged offenses and though there are two Trump co-defendants.
Paging Judge Cannon
— Bradley P. Moss (@BradMossEsq) May 14, 2024
Still, similarly to Biden, Trump has challenged the constitutionality of special counsel Jack Smith’s appointment, raised presidential “immunity” arguments (including all the way up to Supreme Court in his Jan. 6 case), and claimed vindictive and selective prosecution. Leaving aside the lingering immunity issue, U.S. District Judge Aileen Cannon has not resolved Trump’s various motions to dismiss — even the “unconstitutional vagueness” and Presidential Records Act arguments that were deemed not enough for pre-trial dismissal could potentially impact the case at trial.
While Weiss succeeded in efforts to convince Noreika that Biden’s lawyers should not be rewarded for delay tactics, special counsel Smith’s unceasing complaints about the same have gone largely unheeded in Trump’s case.
The most recent blow to Smith’s efforts to take Trump to trial in Florida came last week, when Cannon pushed back a “crucial” deadline, giving the defense more time to file a notice under the Classified Information Procedures Act (CIPA) on whether and how it plans to use classified materials obtained through discovery at trial.
Although it seemed to be a given that a penciled in May 20 trial date would have to be moved, based on how glacial the proceedings have been and to the defense’s benefit, the moving of the notice deadline confirmed that there wouldn’t be a trial date anytime soon.
Cannon set new deadlines for a three-day hearing in late June on a defense motion to compel discovery and on the scope of special counsel Jack Smith’s team — and she scheduled CIPA litigation into July. The judge said it would be “imprudent” to set a trial date now considering the number of issues that remain unresolved — and she offered no hint as to when that might change.
“The Court also determines that finalization of a trial date at this juncture—before resolution of the myriad and interconnected pre-trial and CIPA issues remaining and forthcoming—would be imprudent and inconsistent with the Court’s duty to fully and fairly consider the various pending pre-trial motions before the Court, critical CIPA issues, and additional pretrial and trial preparations necessary to present this case to a jury,” Cannon said. “The Court therefore vacates the current May 20, 2024, trial date (and associated calendar call), to be reset by separate order following resolution of the matters before the Court, consistent with Defendants’ right to due process and the public’s interest in the fair and efficient administration of justice.”
Lawyers reading the tea leaves and reacting to Cannon’s ruling, in light of the way she’s handled of the case from the start, predicted that the end result will be no Mar-a-Lago trial start in 2024. This scenario leaves open that possibility that a Trump election win will jettison the case forever.
The Mar-a-Lago indictment was brought on June 8, 2023, nearly one year ago.
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