The Department of Justice’s (DOJ) indictment against former president Donald Trump alleges in striking detail how Trump put American service personnel at risk through his reckless mishandling of highly classified documents, which he had no authority to possess as a private citizen. 

Hundreds of classified documents were left in insecure places such as on the stage of the White and Gold Ballroom at Trump’s Mar-a-Lago Club, which the club advertises as “perfect” for “weddings, galas, and private parties.” As a consequence, the indictment says, tens of thousands of people had the opportunity to read documents containing information about U.S. military plans, nuclear programs and vulnerabilities to foreign attack.

So yes, we are a long way from hush-money payments to pornographic film actresses.

There is a saying among criminal lawyers defending against cases this strong: “Any fool can reach the merits.” Thus, a trial-avoidance defense strategy could involve delaying Trump’s trial until after the 2024 election if possible. That way, if Trump wins the Republican nomination and then the general election, he can take office and order the Justice Department to dismiss his indictment. Special Counsel Jack Smith, apparently recognizing this possibility, promised at his press conference to seek a “speedy trial.”

Delaying the trial until after the 2024 election may sound like a stretch, but not when you consider the speed bumps facing the prosecutors. Even bread-and-butter federal white-collar cases have built-in friction from disputes over discovery and admissibility of evidence. An “Operation Varsity Blues” college admissions scheme case brought by the DOJ against two parents, for example, took more than two years to reach trial after the indictments were announced.

Classified documents cases have an additional inherent potential for delay, since the trial court must balance the rights of the defendant with the government’s need to avoid public disclosure of highly sensitive information. The Classified Information Procedures Act provides procedures for striking the right balance, but they often involve pre-trial hearings and even appeals that must be resolved before a trial begins.

The federal judge assigned to Trump’s case, Aileen M. Cannon (a Trump appointee), could side with Trump and deny the prosecution a “speedy trial.” She certainly sided with him last year, when she issued a series of rulings that temporarily blocked the DOJ from accessing classified documents seized from Mar-a-Lago during its investigation. 

Judge Cannon was unanimously reversed by a conservative appellate court, which rebuked her for exceeding her authority and creating an “unprecedented exception” in the law for former presidents. If Cannon does not recuse herself, the prosecution can seek to have the Trump case re-assigned to a different judge, but that could involve yet another time-consuming proceeding with no guarantee of success. 

It may be enough for Trump’s defense to put off the trial for only nine months or more, at which point it will collide with Trump’s trial on state charges in New York involving the hush money payments, currently set for late March 2024. Trump can plausibly argue that he shouldn’t be forced into back-to-back trials, which could lead to another delay in litigation over which case goes first and when.

All this could bring the trial in United States v. Trump uncomfortably close to the general election campaign. If Trump is already the Republican nominee, this would create a real bind for the Department of Justice, which has a policy that forbids timing “charges or investigative steps” for the purpose of influencing an election. It is hardly clear that the policy applies in this case, and it confers no new rights upon defendants. Still, Trump’s defense would be able to seize on it to file motions to delay his trial until after the election, which could also be time consuming to resolve.

In effect, this is a race between the political system’s timeline, wherein Election Day on Nov. 5, 2024 is set in concrete, and the judicial system’s timeline, wherein the date of the trial is an unpredictable moving target. 

That’s why voters, and not jurors, may end up effectively deciding the classified documents case against Donald Trump.

Gregory J. Wallance was a federal prosecutor in the Carter and Reagan administrations and a member of the ABSCAM prosecution team, which convicted a U.S. senator and six U.S. representatives of bribery. His newest book, “Into Siberia: George Kennan’s Epic Journey Through the Brutal, Frozen Heart of Russia,” is due out in December.