In such cases, a 1980 federal law known as the Classified Information Procedures Act should balance the government’s interest in maintaining secrecy with the defendant’s right to a fair trial. CIPA will be key as the Justice Department prosecutes Trump, national security law experts have told POLITICO.
Here’s how it works.
Before the Justice Department initiates a case involving classified material, its prosecutors usually consult with intelligence officials at the agencies who hold the related secrets. For example, if a defendant allegedly stole a classified analysis of spy satellite photos, prosecutors would get in touch with National Geospatial-Intelligence Agency officials. They would face a dilemma: How much of that analysis could be included in a public hearing?
Prosecutors would like to reveal everything they need to secure a conviction, while intelligence officials would likely urge caution. Then the two sides negotiate, trying to decide how far to go.
« There may be tensions, » said Gregory Gonzalez, a former prosecutor in the Justice Department’s Homeland Security Division who has handled cases involving classified material. « They would be respectful conversations, but they would be tense. »
Carrie Cordero, a national security lawyer who has held senior positions in the Justice Department and the Office of the Director of National Intelligence, said she was confident these talks shaped the content of Trump’s prosecution.
« They probably selected documents they knew they could use during the case, » he said, referring to prosecutors.
In grand jury proceedings — which, unlike trials, are held in secret — prosecutors vaguely characterize the documents allegedly compromised, according to Gonzalez, now a partner at the law firm Wilkinson Barker Knauer. Grand jurors don’t get security clearances, and therefore don’t get many details.
Trump’s indictment, for example, included brief descriptions of 31 documents he allegedly refused to return to the government after leaving the White House. Various documents related to « foreign country’s nuclear capabilities, » « foreign country’s military attacks, » and « US contingency military planning, » according to the indictment.
Protection orders and security clearances
Once an indictment is issued, the defendant’s Sixth Amendment right to a public trial comes into play. The Supreme Court has held that at least some pre-trial proceedings, including evidentiary hearings AND jury selection — are covered by the amendment guarantee.
Prosecutors typically move for a closed-door pre-trial conference with defense attorneys and the judge assigned to the case. At the conference, government lawyers aim to educate the judge on the issues at stake and how they hope to handle relevant classified material. In districts that commonly handle national security cases, judges may already have a detailed understanding of the complexities they will face. But the judge presiding over Trump’s case, US District Judge Aileen Cannon, who has been on the bench for less than three years, appears not to have heard any cases involving classified material, according to a review of her career as a federal judge.
In this same preliminary period, all defense attorneys who do not have security clearances will need to obtain them. The FBI background check process can take many months, so if prosecutors worry about excessive delays, they can urge FBI agents to expedite things. Defendants may also try to find lawyers who have already been acquitted.
« Usually when you have cases involving classified information, there’s kind of a small bucket of defense attorneys who take it because either they already have the clearance or they’ve had it and they can get it renewed quickly, » Sid Kamaraju said , a former New York federal prosecutor who prosecuted a former Central Intelligence Agency software engineer for causing what was at the time the largest theft of classified information in the agency’s history.
Federal judges do not need clearance and undergo extensive FBI background checks before confirmation by the Senate. Their paralegals, however, are required to obtain security clearances when handling a case involving classified material.
Viewing evidence in a SCIF
Then it moves on to discovery, and the government starts sharing information with the defense. CIPA requires the judge to issue a protective order covering sensitive information so that defense attorneys can face legal consequences if they lose anything. In sealed proceedings, prosecutors and defense attorneys disclose how much classified material will see the light of day, with the judge making the final decision. Descriptions, excerpts and summaries of classified documents could be revealed.
During discovery, according to Gonzalez, defense attorneys typically seek far more information than prosecutors offer. But since the materials are classified, he added, they don’t have the full scope of what the documents say. They can use their clients’ memories of the materials at hand — or even their own intuition — to look for details beyond what the DOJ volunteers.
Once classified documents have been determined to be included in material discovery, defense attorneys can view classified materials in a sensitive compartmentalized information structure, or SCIF. The Miami courthouse where Trump was arraigned does not have one, according to a person familiar with the facilities who were granted anonymity to discuss the sensitive position. But another building in the same complex has one.
One factor that will likely make Trump’s case less complicated than many other Espionage Act cases is that, unlike most of the defendants in such cases, he is not in pretrial detention, and so prosecutors would not need to find a way for him to view confidential information. material while he is incarcerated, to the extent that he would be permitted to see it. Trump may be able to view the material in a SCIF, as are his lawyers.
The threat that some classified evidence must be publicly revealed during trial can sometimes give defendants extra leverage in plea deal talks.
« This is exactly what CIPA was created to prevent, to prevent what they call graymail, » Gonzalez said, « your defense is that you will be exposing this information. »
CIPA regulates how defense attorneys may seek to disclose classified material in court. If the judge decides that the defendant and the jury need more material than the Justice Department wants to share, the government may have to drop some counts or move to drop the case altogether. In Trump’s case, Cannon’s preliminary decisions on these types of disputes could greatly influence the direction of the case.
Conflicting interests in the process
The biggest hurdle in the trial is getting classified material in a form jurors can see, since they don’t get security clearances and because the trial default is for evidence presented to jurors to be made public.
« The jury has to receive all the evidence, so there are ways during the trial that the jury can see the information, but it’s not necessarily made public, » Kamaraju said.
The Supreme Court held that a judge can block public access to parts of a criminal trial only if the judge deems the closure to be « strictly personalized » and « essential to preserve higher values. »
One option is to upload the material to a dedicated, secure laptop that doesn’t have internet access and show it to the jury as they seal up the courtroom (and subsequently draft the transcript of the court proceedings). Another is to introduce substitute documents that use redactions or summarize the contents of classified material without revealing the most sensitive information.
The way in which the material is shown to the judging panel is often the subject of intense and protracted preliminary litigation. « Any case involving the use of classified information as evidence makes the case more complex and can potentially lengthen the pretrial process, » Cordero said.
At trial, according to Gonzalez, CIPA provides a « safety valve » that allows prosecutors to object if they fear defense attorneys will reveal classified information that hasn’t yet been approved. “This allows the government to challenge and seek a decision from the judge if classified information will be collected that has not otherwise been approved by the judge under the CIPA proceeding,” Gonzalez said.
CIPA also allows witnesses — intelligence officers, for example — to testify anonymously in some situations, Gonzalez said. This is because, in national security cases, adversaries may seek to glean information from court proceedings.
But some of these procedural remedies, such as the use of anonymous witnesses and substantive documents, may imply another constitutional right: the defendant’s Sixth Amendment right to confront witnesses and challenge evidence.
« In cases involving sensitive national security information, adversaries will certainly be interested in trying to glean information from the public record, » Gonzalez said. “And so you don’t want to reveal too much in public filings.”
“Even the less than sophisticated players in this space know there is a lot of public information that comes out in criminal cases,” he added.