Lawyers representing former President Donald J. Trump have informed the judge presiding over his documents case that they have initiated the process of obtaining security clearances. This indicates the start of what is expected to be a significant battle over classified evidence prior to his trial. Mr. Trump is currently facing 31 charges under the Espionage Act for unauthorized retention of national security secrets and obstruction of efforts to retrieve sensitive files. In this article, we will delve deeper into the complex legal issues surrounding the use of classified evidence in this case.
The Espionage Act, a law dating back to World War I, criminalizes the mishandling of national security secrets. To establish Mr. Trump’s violation of the charged provision of the act, prosecutors must prove that he possessed classified information related to national defense without authorization, which could harm the United States or assist a foreign adversary, and that he failed to return this information to the government. Each count in the indictment is based on a distinct sensitive document discovered by the FBI during their authorized search of Mr. Trump’s property, Mar-a-Lago. The documents include 21 marked as “top secret,” nine marked as “secret,” and one unclassified document containing restricted information about military planning.
One key legal concept that arises in cases involving classified information is “graymail.” This refers to a defendant’s threat to disclose classified information during a trial in an attempt to coerce the government into dropping criminal charges. While the government could potentially declassify this information for open court discussion, security officials may regard this as too risky. However, defendants have a constitutional right to a public trial and the public has the right to witness these proceedings. Defense lawyer Joshua L. Dratel, who has dealt with terrorism cases involving classified evidence, notes that defense and intelligence officials often resist sharing information that prosecutors could use in building their case. This creates tension between intelligence agencies and prosecutors that defense lawyers can exploit. Although it is unlikely that Mr. Trump will accept any plea deal, it’s worth noting that these negotiations often revolve around whether the government is required to provide classified discovery to the defense.
In Mr. Trump’s documents case, the jury will likely need to review at least parts of each of the 31 documents mentioned in the indictment to assess their compliance with the standards of the Espionage Act. However, this issue may extend beyond these records alone. Defense attorneys may request the government to disclose related classified evidence during the discovery phase and subsequently seek to introduce portions of it at the trial. If defense lawyers can find publicly available information resembling the content of any of the 31 documents, they may use it during the trial to argue that the information was not closely guarded and its disclosure would not harm national security, inevitably exposing the document contents.
The Classified Information Procedures Act (CIPA), enacted by Congress in 1980, aims to prevent graymail from obstructing prosecutions linked to national security secrets. CIPA provides guidelines for prosecutors, defense lawyers, and judges to present classified information in public without compromising protected data such as sources and methods. Typically, litigation involving CIPA takes place behind closed doors before a trial commences. In the documents case, the trial judge, Aileen M. Cannon of the Southern District of Florida, must ensure that any proposed use of CIPA does not infringe upon Mr. Trump’s right to a fair trial. Additionally, Mr. Trump will require legal representation from one or more lawyers with security clearance to participate. The process of implementing CIPA is intricate and time-consuming, often involving non-public hearings where attorneys and the judge meticulously review documents to determine which portions can be disclosed in open court.
CIPA permits the court to block, censor, or create substitutes for classified evidence under specific circumstances. Prosecutors can leverage this law to limit the evidence they disclose during the discovery phase. Defense lawyers must inform the judge and prosecutors in advance of the trial about any classified evidence they intend to present, justifying its relevance and explaining their intended use. Judge Cannon could prohibit the use of such evidence, allow redactions, or authorize substitutions that convey the essence of the information, as long as these decisions do not impede Mr. Trump’s right to a fair trial. For instance, in a case from 2013 where Mr. Dratel represented an individual accused of funding a Somali terrorist group, prosecutors provided him with a summary of the intelligence related to the group’s fundraising, and both sides agreed on a statement to present to the jury during trial, disclosing certain facts without revealing the sources of the information. Defense lawyers are entitled to challenge proposed redactions or substitutions, arguing for the disclosure of full details. Prosecutors can appeal Judge Cannon’s rulings prior to the trial, while the defense would have to wait until after any conviction to submit an appeal.
The “silent witness” rule is a judicially established procedure similar to CIPA substitutions, with the distinction that the jury sees the classified evidence, while members of the public in the courtroom receive limited information. In contrast, under CIPA, both the jury and the public are privy to the same information. As an example, a witness and the jury may be presented with a classified document, which is withheld from the public. During testimony, the witness might refer to specific details mentioned in the document. By examining the document and following along, the jurors comprehend what the witness is discussing, while the onlookers do not.
While certain appellate court decisions have validated the use of CIPA in various scenarios, thereby refuting claims that it deprives the defense of information to which they are entitled or violates the defendant’s right to confront their accuser, the Supreme Court has never addressed this law. This lack of precedent could potentially provide Mr. Trump with grounds for appeal if the trial involves redacted or substituted evidence under CIPA. The “silent witness” rule has even less legal precedent. The Fourth Circuit Court of Appeals approved limited use of this rule in a case involving a former intelligence official accused of violating the Espionage Act by sharing restricted information with China. However, Judge Cannon is not bound by this precedent as she is subject to the appeals court in Atlanta.
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