Special Counsel Jack Smith is due to meet with Judge Aileen Cannon in a meeting behind closed doors.
Smith, who has brought two indictments against Donald Trump, will meet with Judge Aileen Cannon on January 31 without the former president or his lawyers present.
In Florida, Trump faces 32 counts of unlawful retention of national defense information and eight other charges that include making false statements and a conspiracy to conceal them.
He denies all of the charges against him and says they are politically motivated.
The 'ex parte' hearing on January 31 pertains to objections filed by Trump lawyers in which they have asked for access to documents that are off-limits because of sensitive information.
In a motion filed in December last year, Trump's lawyers said they "seek attorneys'-eyes-only access to these filings so that we can challenge [Smith's] assertions in adversarial proceedings."
An ex parte meeting is conducted without parties affected by the proceeding and without a transcript, meaning details of Cannon and special counsel's conversations will not be made public.
The hearing could have significant consequences for the trial given that, should Cannon rule fully or partially in Trump's favor, it is likely to be appealed by the Justice Department (DOJ).
The appeal would be interlocutory, meaning further action or decision would need to be taken before the trial begins. This could delay the trial date, currently scheduled for May 20 this year.
Former U.S. attorney Joyce Vance said that any appeal from Smith's office would be conducted "fairly quickly" if Cannon rejects the prosecution's argument.
"While we won't learn much if anything about what happens when the Special Counsel's team sits down with Judge Cannon, we'll find out if they object to anything that happened fairly quickly, in the form of a notice of appeal to the 11th Circuit," Vance said.
Key to the case and upcoming hearing is the Classified Information Procedures Act. This, according to the DOJ website, "applies both when the government intends to use classified information in its case-in-chief as well as when the defendant seeks to use classified information in his/her defense."
The act means it is incumbent on Smith and his team to identify potentially sensitive documents, but for the court to sanction their removal from discovery.
Section four of CIPA says the government can demonstrate which documents are potentially sensitive in a private, ex parte meeting.
Filing documents to the case under section four also attempts to avoid a process known as "graymail." Essentially, when defense lawyers request the government hand over information, hoping charges will be dismissed by prosecutors in the interest of withholding national secrets.
Vance also called the timing of the hearing strange because Smith's team filed its section 4 motions on December 6. The response from Trump's lawyers was then filed on December 20.
Newsweek has approached Trump's lawyers by email for comment. The DoJ declined to comment.
In Florida, Trump is indicted on the following charges.
- Altering, destroying, mutilating or concealing an object - one count
- Conspiracy to obstruct justice - one count
- Concealing a document in a federal investigation - one count
- Scheme to conceal - one count
- False statements and representations - one count
- Withholding a document or record - one count
- Corruptly concealing a document or record - one count
- Corruptly altering, destroying, mutilating or concealing a document, record or other object - one count
- Retention of national defense information - 32 counts
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