Legal eagles Norm Eisen and Andrew Weissmann penned an analysis for The Atlantic explaining why they consider Donald Trump's demands to delay his 2020 election trial for years to be ridiculous.
Special Counsel Jack Smith responded to Trump's filing on Monday, going through his rationale and highlighting what he considered cherry-picked data and over-exaggerations that create the illusion of an insurmountable burden holding a trial before 2026.
Eisen, who was previously an ethics czar for the White House and an impeachment lawyer against Trump, joined Weissmann, the former senior prosecutor for special counsel Robert Mueller, in explaining that they've dealt with cases that had way more paperwork than Trump's.
Among Trump's arguments is that the documents are so numerous that his legal team can't possibly make it through everything in less than two years. In his filing, Smith's team explained that so much of the evidence comes from Trump himself.
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The men address it, saying that not every page of the discovery is new to the legal team, and they're not flying blind before they get the documents.
"Approximately three million pages of the discovery … come from entities associated with the defendant,” explained Smith in the filing. He went on to say, “Nearly one million more pages came from the House Select Committee to Investigate the January 6th Attack on the United States Capitol.”
As Weissmann and Eisen explained, "All of this material has long been available to Trump and his team."
Next Monday, the judge overseeing the election fraud case, Judge Tanya Chutkan will decide the date for the trial, based on the arguments of both parties.
"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," the legal advisers explained. "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."
If Eisen and Weissmann submitted such an excuse, they said they'd "be laughed out of court." Lawyers don't go page by page through the documents, they explained. If this was a reasonable excuse, the men explained that cases would never go to trial. In this case, the Justice Department built a database allowing for easy search results.
In their experience, the trial can make it by July 2024, they said.
Weissmann was among the prosecutors that worked on the Enron case, one of the earliest white-collar cases that incorporated emails among the evidence.
"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," the piece explained. "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."
Electronic discovery was a challenge 20 years ago, but even then there were ways to manage it without needing years prior to trial.
"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 column explained. "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."
The indictment happened in Oct. and the trial began in mid-Sept., only because there was another one of Manafort's trials in Virginia at the time.
They also pointed out that "deeply conservative" retired judge, Michael Luttig, said on Weissmann’s podcast that both the 2020 election case and the Mar-a-Lago documents case can easily go to trial before the 2024 election.
In fact, "10 conservative legal luminaries joined Judge Luttig in submitting a proposed amicus saying as much."
They also argued that there is nothing more important to the public interest than in moving the trial forward so voters can understand the full details of the case before they vote in Nov. 2024.
