Attorneys for former President Donald J. Trump they told the judge overseeing his case of documents that started the process of obtaining security clearances, the first step in what will likely be a major battle for classified evidence ahead of his trial.
Mr. Trump is facing 31 counts of unauthorized retention of national security secrets under the Espionage Act, along with charges that he obstructed government efforts to recover sensitive files, including by defying a subpoena.
Here’s a closer look at the sensitive legal issues raised by the role of classified evidence in the case.
What are the Espionage Act charges?
The Espionage Act is a World War I-era law that makes it a crime to mishandle national security secrets. To prove that Mr. Trump violated the offending provision of the actprosecutors must prove that he possessed, without authorization, tightly held information « related to national defense » that could harm the United States or aid a foreign adversary, and that he has not returned it to the government.
Each of the 31 counts is based on a different sensitive document the FBI found in its court-sanctioned search of Mr. Trump’s club and estate, Mar-a-Lago. As described in the indictment, they include 21 marked « top secret », nine marked « secret » and one without a classification stamp that contained sensitive « contingency military planning » information.
What is « grey mail »?
It is a threat from a defendant to reveal classified information during a trial in hopes of forcing the government to drop a criminal charge. While the government may choose to declassify that information so it can be freely discussed in court, security officials may consider it too risky. But the Constitution gives defendants the right to a public trial and the public the right to see trials.
Joshua L. Dratel, a security-cleared defense attorney who has handled terrorism cases involving classified evidence, said defense and intelligence officials often do not want to provide information that prosecutors can use to pursue a case.
« It’s common, if not invariable, for you to get a plea offer in the event the government says, ‘If we are to provide you with a classified discovery, this offer is no longer on the table,’ and those can be very tempting plea offers. » « Dratel said. ‘That’s because there’s a huge tension between intelligence agencies and prosecutors that defense attorneys can exploit. »
Mr. Trump, however, shouldn’t accept any plea deals.
How could classified evidence be a problem in the case of Mr. Trump’s documents?
The jury presumably needs to see at least portions of each of the 31 files identified in the indictment to assess whether they meet the standards of the Espionage Act. But the problem is likely not limited to just those records. Defense attorneys can also ask the government to turn over related classified evidence in the discovery phase, and then seek to use some of it at trial.
If defense attorneys can find things in the public domain that are similar to what is in any of the 31 documents, they may want to take it to trial to argue that the information was not strictly preserved or that its disclosure would not harm the U.S. , who would themselves reveal the content of the documents.
What is CIPA?
Congress enacted the Classified Information Procedures Act, or CIPA, in 1980 in an effort to reduce the chances that graymail would derail prosecutions of people in cases involving national security secrets. (Coincidentally, the bill it was introduced in 1979 by Senator Joseph R. Biden Jr., who was the chairman of the Judiciary Committee.)
CIPA has established ways for prosecutors, defense attorneys, and judges to frame classified information so it can be used in public without compromising protected information such as sources and methods. Before a trial even begins, litigation involving statute typically takes place behind closed doors.
In the case of the documents, the trial judge, Aileen M. Cannon of the Southern District of Florida, must agree upfront that any proposed use of CIPA would not violate Trump’s right to a fair trial. Mr. Trump will also need representation from one or more security-cleared attorneys to participate.
« It’s a long and very complicated process, » said Barry Pollack, a defense attorney who also has a security clearance. « Often there are hearings not open to the public where the lawyers and the judge literally go through the documents line by line deciding which sentences and which individual words can be used in public hearing and which are not. »
How does CIPA work?
It allows a court to block, censor or create replacements for classified evidence under certain circumstances.
Prosecutors may try to use the law to limit the evidence they turn over to the defense in the discovery stage. And defense attorneys must tell the judge and prosecutors ahead of trial what classified evidence they plan to introduce, arguing that it would be material and explaining how they intend to use it.
Judge Cannon could block that evidence, allow the government to black out parts of it, or allow for a replacement that delivers the gist, as long as he decides it won’t impede Trump’s right to a fair trial.
For example, during a 2013 case in which Mr. Dratel represented a San Diego man accused of sending money to a Somali terrorist group, prosecutors gave him a summary of government intelligence about the group’s fundraising. Both sides then agreed on a statement to show the jury at trial reciting some facts without revealing how they were learned.
As in other similar cases, defense attorneys may object to proposed changes or substitutions, arguing that full details are needed. The prosecution can appeal Judge Cannon’s decisions before the trial, but the defense would have to wait until after any convictions.
What is the silent witness rule?
It’s a judicially created process it is similar to CIPA substitutions with one key difference: the judging panel sees the classified evidence, while members of the public in the gallery get less information. Conversely, under CIPA, both the jury and the public see the same thing.
Under the silent witness rule, for example, a witness and jurors could be given a document that is still confidential, but it would not be made available to the public. During testimony, the witness may refer to the « issue in the third paragraph of the document. » By looking at the document and following it, jurors would know what specifically the witness was discussing, but viewers would not.
How legally established are these procedures?
Some appellate court rulings have validated CIPA in various contexts, such as dismissing arguments that it deprived the defense of information to which it should have been entitled or violated a defendant’s right to confront his accuser. The Supreme Court has never addressed the law, which could give Trump a basis to appeal any conviction if the trial used evidence redacted or substituted under that law.
There is even less precedent for the silent witness rule. The Court of Appeals for the Fourth Circuit, in Richmond, Virginia last year approved its limited use in a case accusing a former intelligence official of violating the Espionage Act by providing classified information to China. But Judge Cannon is not bound by that precedent because he is supervised by the Atlanta appeals court.
