Next Monday, Judge Tanya Chutkan is expected to decide the date of Donald Trump’s federal criminal trial for his attempt to overturn the 2020 presidential election. The two parties’ proposed dates are ages apart: Special Counsel Jack Smith has requested January 2024, and Trump has asked for more than two years later than that. Yesterday, Smith submitted a brief response to Trump’s filing. Both sides contend that their suggested schedule is what normal order requires. Smith has the better argument by far.
Contemporary trials, civil and criminal, routinely involve the tsunami of data people create day in and day out, resulting in millions of pages of documents produced during discovery. As the government’s reply highlights, Trump’s argument, resting principally on the more than 11.5 million pages of evidence the government produced as an excuse for significant delay, is without merit. Based on our experience in this field, it is simply disingenuous to use 19th- and 20th-century standards for paper cases in the modern era. The chart that Trump’s lawyers produced in their brief—visualizing a tower of physical paper they would have to review in a six-month span—is misleading. We—attorneys both—would be laughed out of court if we suggested delays for our side because a page-by-page document review of all discovery would take three years. Under that approach, no major civil or criminal case would ever be tried for years and years—which may be the Trump team’s actual goal.
Each of us has decades of criminal-law experience, Weissmann as a prosecutor and Eisen as a defense attorney. In fact, we first crossed paths on the most complex criminal corporate case in history—the Enron litigation—where we were on opposite sides of the table. That case featured hundreds of millions of documents, and since then we have handled other so-called large document cases. That experience makes clear to us both that Jack Smith’s case can go to trial early in 2024 consistent with due process—and certainly before the July 2024 Republican convention, when the party will officially nominate its candidate.
That might surprise those who have not litigated large document cases. Trump’s team makes much of the fact that the government’s proposed schedule would supposedly require the equivalent of reading 78 copies of War and Peace a day. However, that amount of discovery is not unusual in large criminal (and civil) litigation. Attorneys deal with greater volumes all the time.
The Enron case can be viewed as a turning point into the modern era of litigation. Enron was unusual at the time: It was one of the first major white-collar cases in which millions of documents were electronic (although many were paper copies), and it involved a significant amount of electronic data, such as financial records, emails, and the like.
For Weissmann, Enron was the first criminal case he had worked on where none of the prosecutors could look at all of the documents—something that is now commonplace in both civil and criminal trials, with the metastasizing of electronic data. Meanwhile, Eisen helped manage the electronic document-review process for his client and other parties. Without electronic tools, the lawyers would have had to read each and every document, making timely trials impossible.
Twenty years ago, the advent of massive electronic discovery posed unique challenges, but even then it could be managed without necessitating years to pass between indictment and trial. Now it is no longer an issue. The rules of criminal and civil procedure have adapted to this discovery environment, and discovery attorneys and paralegals routinely use approaches such as AI, computer searches, and document review by a team of attorneys to speed up electronic sorting and review in major complex criminal trials that involve terabytes of data.
Smith’s reply brief hammers this point in taking Trump’s lawyers to task, and our shared experience emphasizes that he is right about how technology speeds things along. This is how Weissmann handled all of the major international white-collar cases that he prosecuted as the head of the fraud section at the Department of Justice, and how Eisen and his colleagues in the defense bar practice not just in civil cases but in the criminal context as well, where they regularly handle cases that require document review with volumes far greater than this. Smith’s brief astutely notes this modern standard, and explains how electronic review will be expedited by the formatting the government uses to make electronic review as easy as possible for the defense.
Litigants and the courts have relied on such technology to handle document review even in highly public criminal cases. For example, as a member of Special Counsel Robert Mueller’s investigation team, Weissmann led the two cases against Paul Manafort. The tax- and bank-fraud prosecution in Virginia took only five months to get to trial—which is routine in that district’s judicial practice. Meanwhile, the Manafort case in Washington, D.C.—a sprawling international case involving charges of money laundering, tax fraud, Foreign Agents Registration Act violations, obstruction, and false statements—had substantial electronic discovery, with millions of documents and overseas evidence from far-flung jurisdictions. In that case, the indictment was filed in October and the trial was scheduled to commence in mid-September, 11 months later (and could not proceed earlier because of Manafort’s Virginia trial).
Moreover, Trump’s team is vastly overstating the volume truly at issue. Its filing makes it seem like all of the discovery will be entirely new material, which Trump’s lawyers will be able to start reviewing only once the government hands it over. But, as Smith noted yesterday, Trump’s team already has access to much of the material, so this isn’t a large data dump of new material with no lead time. According to the government, “Approximately three million pages of the discovery … come from entities associated with the defendant,” and “nearly one million more pages came from the House Select Committee to Investigate the January 6th Attack on the United States Capitol.” All of this material has long been available to Trump and his team.
And the subset of government discovery material that is actually new to the defense is already reported by the government to contain a lot of duplicates, which is invariably the case in large electronic-data discovery, and which just as invariably is easy for computers to quickly “dedupe.” For instance, the government notes that to facilitate defense review, it produced many documents twice: once to show the original source from which the government obtained the document, and again in a separate witness folder if the document was used in interviewing a witness. In that regard, the discovery in this case is somewhat like 78 copies of War and Peace, but not in the way the defense meant: After you read the first one, you don’t need to read the other 77.
Adding to the ludicrousness of the defense’s argument is that Trump is not an indigent defendant—he has ample resources to hire the team necessary to go through discovery in an expeditious and thorough manner. Even before the very latest technologies, a single reviewer could do thousands of pages a day, and we have known the better reviewers working for us to reach 10,000 pages a day. It is not unusual to have teams of dozens of document reviewers, allowing the rapid review of large volumes of documents.
And let’s be real for a moment: Most of the material here is not remotely germane to the defenses Trump and his lawyers have publicly touted—First Amendment, presidential immunity, advice of counsel, and good-faith belief. If any more than a small portion of the discovery relates to these claims, that would be itself surprising.
Trump—as with every criminal defendant—deserves due process, and he should be afforded all rights and protections under our criminal procedure. A crucial element of the criminal-justice system is that there is not a rush to judgment—but the issue is what constitutes due process in a particular case. The federal January 6 case going to trial within the timeframe the government proposes (or slightly beyond that) follows standard operating procedure in criminal cases, and is by no means undue.
In fact, Judge J. Michael Luttig—an experienced and deeply conservative jurist, formerly on the Fourth Circuit—has publicly said (including on Weissmann’s podcast) that both the January 6 and Mar-a-Lago-documents cases can easily go to trial before the 2024 election. And 10 conservative legal luminaries joined Judge Luttig in submitting a proposed amicus saying as much.
As their brief explains, an important consideration—to be balanced against a concern about a hasty prosecution—is a right to a speedy trial. This right does not belong exclusively to the defense or the prosecution—it belongs to the public. The government’s response, filed yesterday, convincingly demonstrates the lengths it has taken to ensure that Trump and his lawyers have sufficient time to mount a vigorous defense, while also fulfilling the public’s right to a speedy trial. And what could be more in the public interest than this case, whatever the result, getting to trial expeditiously?
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