Cooley Law Professor Jeffrey Swartz Provides Analysis on Trump Case and the Southern District of Florida
I have listened to many of the "experts" on the national networks describe the length of time it will take to bring the indictment against Donald Trump to trial. The estimate of up to a year is just not accurate.
I am a former Miami judge, who, before and after the bench, practiced as a criminal defense attorney in the Federal Courts before the judges of the Southern District of Florida (SDFL) and many other districts around the country. Every district is different and every judge within those districts have different demeanors.
There are three significant reasons why I believe this case will be OVER before the end of the year.
- The judges of the SDFL have standard procedures that include an order entered at arraignment establishing a pretrial conference date and hearing at which the parties are required to establish proposed discovery and motion practice deadlines and a trial date. Depending on the complexity of the case the trial date is anywhere from 70 days to 5 months from the arraignment date. Despite what some perceive as a complex case, I believe this indictment is going to stun many in its simplicity and straightforwardness. Jack Smith will make this simple and place the onus on Trump to present evidence to contradict these simple truths and the prosecution will be prepared to rebut all the defense theories which might be presented.
- Many of the issues Trump could have raised in motion practice have either been mooted or already been ruled upon.
- Venue will no longer be an issue. Moving the case to Palm Beach is not a venue issue. The rules only require that the indictment be in the appropriate district not a division of the district.
- There is no motion to suppress the search of the Mar-O-Lago property available. The search warrant and its validity have already been litigated in the case commenced in front of Aileen Cannon, a judge of the SDFL and the 11th Circuit Court of Appeals with the latter court finding the warrant valid as against the challenges of Donald Trump. Any other defendants in this case have no standing to suppress that search.
- Admissibility issues of other evidence will be handled by Motions in Limine and arguments by legal memorandum.
- There is no right to oral argument in motion practice, and it is the general practice in the SDFL for judges not to grant oral argument of evidentiary hearings, when not required.
For all these reasons I believe this matter will be handled in a deliberate, but swift manner.
Professor Jeffrey Swartz has participated in appeals and oral arguments before the Ohio Supreme, the Florida Supreme Court, the U.S. Court of Appeals for the 11th Circuit and the First, Third and Fourth District Courts of Appeal of Florida. While serving as a County Court Judge, Professor Swartz served as a member of the faculty of the Conference of County Court Judges, as well as for the faculty of the College of Advanced Judicial Studies. He also served three terms as a member and chair of the Florida Supreme Court Judicial Ethics Advisory Committee. Professor Swartz just completed a six-year term on the Florida Bar’s Permanent Committee on the Rules of Criminal Procedure. At Cooley, Professor Swartz teaches Criminal Law and Criminal Procedure. He has made numerous appearances on national and local television, providing expert commentary.
PROFESSOR SWARTZ UPDATE 7/21/2023
"Do not applaud Judge Aileen Cannon on Donald Trump’s document trial that could begin as early as May 20 with a pretrial hearing in the case being held on May 14. The date fits nicely after the primaries are over and close enough to the Republican National Convention (starting July 15, 2024) that Trump will request a continuance to prepare for that event. It is also late enough that she hopes one of the other cases, including the new federal indictment coming by the end of the month, will be tried and Trump sentenced (assuming a guilty verdict in something). All that so she does not have to go first on anything.
"Admittedly Judge Cannon set a short date for resolution of the Government’s motion for a Protective Order under Section 3 of the Classified Information Procedures Act which, if granted, would prevent defense counsel from disclosing classified information that is provided to them by the prosecution to their clients. That order is subject to appeal by either side but should not affect the remainder of her scheduling order.
All that is left open is the question: does she have the ability to stand up to the onslaught of delay requests that will come from Trump’s lawyers and stand firm (as all other SDFL judges do) and enforce her deadlines? We will see what we will see."