A hearing on Wednesday morning in South Florida could decide whether President Trump stands trial on Espionage Act charges before or after the next presidential election.

Mr. Trump is the frontrunner to claim the Republican nomination in that contest, and he has been working to delay his trial for storing classified documents at Mar-a-Lago until after America goes to the polls in November 2024. That decision now rests with Judge Aileen Cannon, a jurist he nominated to the federal bench. 

Judge Cannon has set a trial date of May 20, and Special Counsel Jack Smith has been eager for her to keep that appointment despite the former president’s arguments that it is too soon to provide time to prepare. He has also claimed that holding a criminal trial in the midst of an election season would be incompatible with the due process rights owed to criminal defendants.

The Wednesday hearing, though, is timed just before a Friday deadline to file any pretrial motions, where the two sides make their case for what manner of evidence can be used at trial. If Judge Cannon decides to push back the trial, that deadline would be revised as well. The churn of litigation is paused while Judge Cannon considers the request. 

In pushing for a delay, Mr. Trump argues that he has struggled to gain access “to significant portions of the materials that the Special Counsel’s Office has characterized as classified and conceded are discoverable.” Under the Brady rule, the government is obligated to turn over, at its own initiative, any significant evidence that could help exonerate the defendant.

Pushing against a delay, Mr. Smith has written to Judge Cannon that his office has turned over “approximately 1.3 million pages of unclassified discovery” to the former president, arranged in a “thorough and organized” manner. The prosecutor has admitted, though, to “unforeseen complications regarding the defense’s access to some of the classified material.”

While Mr. Smith insists that those snafus have been “resolved,” Judge Cannon could conclude that any irregularities in the provision of evidence warrant a delayed date. It would not be the first time in recent weeks that prosecutors will have felt Judge Cannon’s displeasure. Earlier this month, she accused Mr. Smith’s office of “wasting the court’s time” for raising arguments in court that had not been properly briefed. 

In requesting a trial date “in or after mid-November 2024,” Mr. Trump rejects the May start as “unprecedented” and “untenable.” He also accuses Mr. Smith of having “misled the Court this summer by contending that the unprecedented schedule it requested was workable.” The former president maintains that the schedule is unworkable partially because of his obligations as a criminal defendant in Mr. Smith’s other trial, related to election interference, due to start on March 4.  

Judge Cannon, in an earlier phase of the case, showed herself to be inclined toward the approach of a tortoise rather than a hare. She appointed a special master, or external expert, to supervise the government’s work, and halted the prosecution while he combed through the special counsel’s evidence. 

The jurist was subsequently rebuked by a panel of the 11th Circuit for that decision; it accused her of a “radical reordering of our case law limiting the federal courts’ involvement in criminal investigations.” If she decides to hold the trial after the election, Mr. Smith could appeal once again, though trial judges are afforded great latitude in how they schedule their cases.   

The Mar-a-Lago case is a federal one, which means that if Mr. Trump returns to the White House, he would be in charge of the Department of Justice under whose aegis Mr. Smith works, albeit with some protections afforded the office of special counsel. Any effort to remove Mr. Smith could eventually reach the Supreme Court as a referendum on the extent of presidential prerogative.