by TECHNO FOG
Earlier this month, Special Counsel Jack Smith requested a December 11, 2023 trial date (the date of jury selection, with opening on January 2, 2024) for Donald Trump’s DC criminal case. He promised District Court Judge Tanya Chutkan that such a schedule would “give the defendant time to review the discovery in this case and prepare a defense, and would allow the Court and parties to fully litigate any pre-trial legal issues.”
There is no doubt that December 11 is a fast trial date. January 6 defendants languish in squalid conditions while the Government takes its sweet time to prosecute their cases. Even “regular” criminals – those child traffickers and hookers and embezzlers and Medicare scammers who face charges in federal courts – are afforded trial dates years out.
But let us focus on something more concerning.
Special Counsel Smith isn’t just asking for a quick trial date – he’s asking Judge Chutkan to set a trial (and motions) schedule that violates Trump’s Sixth Amendment right to effective assistance of counsel.
The Sixth Amendment guarantees that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,” the right to counsel, the right to “be informed of the nature and cause of the accusation”, and the right to confront witnesses. At its essence, the Sixth Amendment protects “the fundamental right to a fair trial.” 1
The right to counsel “is the right to the effective assistance of counsel.” 2
It isn’t limited to the trial; rather, the Sixth Amendment “actually requires effective assistance at critical stages of a criminal proceeding, including pretrial stages.” 3
That right is violated where the government places limitations on, or interferes with, how counsel for a defendant conducts or prepares for that defense.
The Sixth Amendment is also violated where counsel for a defendant lacks time to prepare for trial. As the DC Circuit has observed:
“stripping away the opportunity to prepare for trial is tantamount to denying altogether the assistance of counsel for the defense.” 4
There are plenty of Constitutional issues up for debate – this isn’t one of them. There are no circuit splits on this issue, there is no divided Supreme Court to decide whether the Sixth Amendment ensures counsel adequate time to prepare for trial. This is the unquestionable right of a defendant guaranteed under the Constitution.
In light of this law, Special Counsel Smith had the audacity to say it is a “faulty assertion that it is necessary to conduct a page-by-page review of discovery for a defendant to receive a fair trial.”
As Trump’s lawyers observed, requests a December 11, 2023 trial date in a case involving over 11.5 million pages of documents, not including probably hundreds of hours of audio and video and other documents not easily paginated. Trump’s team was provided 8.5 terabytes of data. There are hundreds of witnesses. To comply with Special Counsel Smith’s proposed trial date, they would have to review nearly 100,000 pages per day. (For the reasons listed below, that is actually a low estimate.) Stack those 11.5 million pages together and they’d be nearly 5,000 feet high.
That doesn’t even take into account the time it would take to interview witnesses or file third-party subpoenas. It also doesn’t consider the hours and hours (meaning days) it will take Trump’s team to prepare all the necessary pretrial motions, including dispositive motions and evidentiary motions. Many of which cannot be completed without a proper understanding of the record.
Then there are the trial preparation demands. Special Counsel Smith estimates the Government’s “case in chief will take no longer than four to six weeks.” It would take Trump’s team months to adequately prepare to cross-examine the Government’s witnesses. And we haven’t even got to the weeks and weeks and weeks it would take Trump’s lawyers to prepare for their own case in chief.
In sum, the expedited trial setting requested by Special Counsel Smith makes the Sixth Amendment’s guarantees an impossibility. It is a demand for the trial court to ignore Trump’s constitutional rights. He might as well be asking the FBI to start conducting searches without a warrant.
1 – Strickland v. Washington, 466 US 668, 684-85 (1984).
2 – McMann v. Richardson, 397 US 759, 771, n. 14 (1970).
3 – Lafler v. Cooper, 566 US 156 (2012).
4 – United States v. Burton, 584 F.2d 485, 489 (D.C. Cir. 1978)