Special counsel rejects Trump’s request to move January 6th trial to 2026

21 August 2023

United States Justice Department special counsel Jack Smith on Monday responded to former President Donald Trump's request to move his criminal election subversion trial to 2026, arguing in a six-page filing submitted to US District Court Judge Tanya Chutkan of the District of Columbia that it "would deny the public its right to a speedy trial, the defendant cites inapposite statistics and cases, overstates the amount of new and non-duplicative discovery, and exaggerates the challenge of reviewing it effectively."

Smith writes that "the Government respects the defendant's need to review discovery and prepare for trial, but his characterizations of the volume of discovery miss important facts. The majority, or roughly sixty-five percent, of the Government's first discovery production—in which the Government front-loaded the most important materials—consists of materials to which the defendant has functionally had access, are duplicative, or do not constitute Rule 16 discovery. Approximately three million pages of the discovery—25% of the first production—come from entities associated with the defendant. Hundreds of thousands of other pages came from the National Archives—meaning that the defendant or his representatives reviewed them before the Government received them—or are publicly available, including the defendant's tweets, Truth Social posts, campaign statements, and court papers involving challenges to the 2020 election by the defendant or his allies."

Smith continues, "The Government provided the discovery in organized, load-ready files for importation to a searchable electronic database, with the understanding that the defense, consistent with modern standard practice, will review discovery electronically rather than manually. 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. 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. These methods include efficient keyword searching and relevancy tagging by multiple simultaneous users, as well as date filtering, deduplication, and threading—all of which services, and more, are offered by the defendant's e-discovery vendor, according to its own website, and are tools that courts appropriately expect legal professionals to use."

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Trump, Smith adds, "also contends that the existence of classified discovery necessitates delay. But this is not a case about classified information and the Government does not anticipate introducing classified material in its case-in-chief. As the Government will explain during the August 28 hearing under Section 2 of the Classified Information Procedures Act ('CIPA'), there is no reason that the CIPA discovery process in this case cannot proceed quickly and in parallel with the schedule proposed by the Government. 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; in fact, comparisons such as those are a distraction from the issue at hand—which is determining what is required to prepare for trial."

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