How Trump will fight the classified documents charges he’s facing, including asking for a long delay

By Tierney Sneed

(CNN) — Former President Donald Trump and his co-defendant Walt Nauta on Monday night laid out some of the legal attacks they’ll potentially launch against charges related to the alleged mishandling of classified information brought against them by special counsel Jack Smith.

The defendants argue the charges will give rise to “unprecedented” pre-trial disputes that will require US District Judge Aileen Cannon to weigh in on legal questions that have likely never been put before a court before.

The defense also suggests it won’t be possible to seat a fair jury while the presidential campaign is underway – a hint that Trump may ultimately ask for a post-election trial date, though Monday’s filing did not propose any specific schedule.

“This extraordinary case presents a serious challenge to both the fact and perception of our American democracy,” Trump’s and Nauta’s legal teams wrote in the joint filing. “The Court now presides over a prosecution advanced by the administration of a sitting President against his chief political rival, himself a leading candidate for the Presidency of the United States.”

The special counsel wants the case to go to trial in mid-December. Trump and Nauta have pleaded not guilty to the charges, which include obstruction-related allegations in addition to the accusations that Trump illegally retained national defense information.

Here are some of the pre-trial issues Trump and Nauta may raise in the case:

Does the Presidential Records Act and “various criminal statutes” require the case’s dismissal?

Trump and his allies have claimed that the Presidential Records Act – passed after the Watergate scandal to dictate how a former president is obligated to turn over records from his or her administration upon their departure from the White House – actually shields his alleged behavior.

Not surprisingly, his lawyers say they’ll pursue that argument in a motion to dismiss the case, claiming those legal questions have “never been addressed by any court.”

Legal experts have thoroughly debunked the claims Trump has made about the PRA so far.

Did the special counsel have the authority to bring the charges?

The defendants’ filing says that they may bring “Constitutional and statutory challenges relative to the authority of the Special Counsel to maintain this action (additional issues of first impression for this Court).”

The filing did not elaborate on what the scope of those arguments could take, but when Trump faced an investigation by special counsel Robert Mueller into his campaign’s links to Russia, he claimed that the “The appointment of the Special Counsel is totally UNCONSTITUTIONAL!”

When such arguments were made in court against Mueller’s authority by another entity charged in the Russia probe, a Trump-appointed judge upheld Mueller’s appointment and prosecutorial powers.

Were the documents in question actually classified?

Trump and Nauta say “the classification status of the documents and their purported impact on national security interests” are a potential pretrial issue that will need to be dealt with.

Trump has claimed at times that he declassified the documents in question, though his lawyers have stopped short of making such assertions in legal filings. The charges Smith brought, however, do not necessarily turn on whether the materials were classified.

How will the classified material be handled in the case?

The defendants previewed opposition to prosecutors using “any ‘secret’ evidence in a case of this nature.”

This appears to be a reference to the procedures that will be hashed out, under a relevant law, for how the classified materials will be handled during the trial and whether they will be shielded from public view. Trump and Nauta say they won’t know how much of a dispute over these procedures there will be until they have a chance to review the classified discovery.

But they said that they “believe there should simply be no ‘secret’ evidence, nor any facts concealed from public view relative to the prosecution of a leading Presidential candidate by his political opponent.”

The first hearing on how to handle the classified documents is scheduled for next Tuesday.

Will there be other discovery matters that need to be addressed?

The Monday night filing gave new insight into what evidence the Smith team has handed over to the defendants so far, as they suggested that at some point they’ll have to make additional discovery requests.

In just the first discovery production, which did not include any of the classified materials in the case, prosecutors gave the defense roughly nine months of closed-circuit TV footage, according to the new filing, as well as 428,300 records that include 122,650 emails and 305,670 documents.

Can a fair jury even be seated during a presidential election?

Without saying explicitly that they’ll seek a post-election trial date, Trump and Nauta raised the notion that it may not even be possible to seat a jury while the presidential campaign is underway.

“Here, there is simply no question any trial of this action during the pendency of a Presidential election will impact both the outcome of that election and, importantly, the ability of the Defendants to obtain a fair trial,” the filing said.

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