Handling Classified Material at Trial

How do prosecutors try a case when the charges are based on top secret and other classified documents? By definition, top secret means that releasing the information publicly could do grave damage to national security. That harsh truth can be a stumbling block in prosecutions. If documents are declassified so they can be shared with a jury, that may cause the jury to conclude the information in them wasn’t as serious as the government claims and be hesitant to convict. But in many cases, declassification isn’t an option. The prospect of damage is too great to contemplate, as with nuclear secrets, information obtained from allies, or assessments that, if revealed, could compromise our national defense. In cases like that, there’s a real risk of defendants engaging in graymail, the practice of threatening to expose critical information in open court if the government insists on taking them to trial.

Problems related to graymail can leads to plea bargains like the one that let former CIA Director, General David Petraeus, off with a plea to a misdemeanor offense and no jail time after he shared highly classified information with his mistress, who was writing his biography.

Congress gave prosecutors some potential protections in the form of the Classified Information Production Act of 1980 (CIPA). The goal of the law is to prevent unnecessary disclosure of classified information in the criminal setting. Defendants’ rights have to be balanced with the need for secrecy. In a lovely bit of irony, CIPA was introduced by then Senator Joe Biden during the summer of 1979.

Cases involving classified evidence are complicated. While the National Security Division at DOJ provides expertise to prosecutors nationwide when these matters pop up outside of the District of Columbia, where these cases are most frequently handled, there is no comparable resource for federal judges. Some judges may have expertise from cases they’ve handled or from sitting on the Foreign Intelligence Surveillance Court, but many have never encountered these kinds of matters before.

The Core provision of CIPA requires the court, on the government’s motion, to hold a pretrial hearing “to make all determinations concerning the use, relevance, or admissibility of classified information that would otherwise be made during the trial or pretrial proceeding.” Holding the hearing pre-trial is important. It means that the government understands, before a jury is empaneled and double jeopardy attaches, what the cost in disclosure of classified materials will be before they proceed. These proceedings are held in private.

The government can ask the court to permit it to offer unclassified substitutes that would leave the defendant in substantially the same position to defend themselves as they would be if they offered the classified evidence at trial. For instance, it can propose using a statement admitting relevant facts that the classified information would tend to prove or a summary of the classified information, instead of the classified information itself. Under CIPA, the judge should accept this proposal if it leaves the defendant positioned to offer the type and caliber of defense they could put on with the classified information.

Similar provisions apply to the discovery process, when the government turns over it’s evidence to the defendant. CIPA provides that "[t]he court, upon a sufficient showing, may authorize the United States to delete specified items of classified information from documents to be made available to the defendant through discovery under the Federal Rules of Criminal Procedure, to substitute a summary of the information for such classified documents, or to substitute a statement admitting the relevant facts that classified information would tend to prove." The statute balances the rights of the defendant with the needs of national security throughout.

CIPA is not a substantive rule about what discovery the government must provide and what evidence will be admissible at trial. Rather, it is more a matter of timing involving when the defendant must identify evidence it wishes to use, as well as when the court must rule on those requests. That’s important because CIPA makes it possible for the government to take an immediate, expedited appeal from any ruling by the trial judge that orders disclosure of classified information, denies the government a protective order so the defense may not disclose classified information provided to it in discovery, and penalizing the retention of classified information. This makes sense in cases involving classified information because it gives the parties clear rulings as early as possible so the government can decide whether it is consistent with national security for it to proceed. Here, with Judge Aileen Cannon making the calls, the immediate appeal provision offers a prompt and thorough layer of review if she continues her dangerous pattern of pandering to Donald Trump at the expense of the rule of law. Knowing she will face that sort of scrutiny may serve to rein her in. But in any event, they can be promptly reversed if she continues on her earlier course.

There is case law in the 11th Circuit that confirms the use of these procedures. A panel of 11th Circuit judges had the opportunity to consider CIPA several years after the law was passed in a case that came out of the Southern District of Florida. They concluded in United States v. Collins, that it is appropriate to follow the procedures set forth in CIPA to permit the government to learn the “price” of going ahead with a prosecution before actually doing so. The court pointed out that ultimately, it is up to the Attorney General, not the court, to decide whether classified information will be disclosed. Once DOJ knows what the court will permit a defendant to introduce at trial, the government is free to dismiss certain charges or to dismiss its case entirely. The law in the circuit is clear—a district judge must follow the procedures set forth in the law.

The application of these rules may help to explain why the government filed 31 separate counts under the espionage act in U.S. v. Trump. If some of the court’s evidentiary rulings leave prosecutors concerned about material that could be exposed, they can selectively dismiss counts in the indictment in order to protect national security. Another 11th Circuit case, U.S. v. Anderson, which also comes out of the Southern District of Florida, clarifies the procedure to be followed under CIPA: “CIPA established a procedural framework for ruling on questions of admissibility involving classified information before introduction of the evidence in open court…Section 5(a) of the Act requires defendant to give notice to the United States and the court if he reasonably expects to disclose classified information during his trial or during a pretrial proceeding. Once the defendant gives notice of his intention to introduce classified material, Section 6(a) permits the government to request an in camera hearing at which the court shall determine the "use, relevance, or admissibility" of the proposed information.”

In a case before a district judge in Miami, the court confirmed that the government has options for avoiding disclosure of classified material, although it concluded that ultimately, if the court ruled a defendant was entitled to offer classified material at trial, the government then faced the choice of whether it would go forward or dismiss it’s charge, “If the court determines that classified information is admissible under section 6(a), the government may move for permission to substitute a summary or admission of relevant facts under section 6(c) (1). The court must grant a section 6(c) (1) motion, if it finds that the statement or summary will provide the defendant with ‘substantially the same ability to make his defense as would disclosure of the specific classified information.’"

This is a high level overview of CIPA, but there are thorny, case-specific questions that come up and must be resolved. In cases where a defendant is unable to obtain a security clearance, courts have tended to permit the defendant’s lawyers with clearances to review material subject to a protective order, but prohibited them for sharing it with their client. It would be stunning to watch that situation play out in a case involving a former president. It is difficult to imagine him obtaining a security clearance at this point. Other issues, for instance, when personnel from the intelligence community must be called to testify, or how classified evidence that is shown to a jury must be handled, require deliberation by the court, which must devise orders suited to the specific case.

Judge Cannon was cavalier in her treatment of classified material in her first go-round in this matter. If she continues down that path, denying prosecutors the opportunity to avail themselves of the protections CIPA provides, they will appeal her to the 11th Circuit. If her CIPA rulings are as lackadaisical as the orders that caused the 11th Circuit to reverse her in the search warrant matter, that won’t go well. If she continues to put her thumbs on the scales of justice for the former president, she could easily find herself not just reversed, but subject to an order by the circuit court that, on remand, the chief judge in her district reassign the case to another judge. Because the government will have to appeal any egregious mistakes the judge makes in really on CIPA matters, this is a prime opportunity to request reassignment of the case without injecting any additional delay into the case. Word is, Judge Cannon has declined to recuse from the case on her own. It’s unlikely she’ll have the final say on that matter.

We don’t usually get this deep or technical with the law, but as U.S. v. Trump, moves forward, I expect we’ll be doing a little law school together. I’m interested in your reaction to this post and whether you’d like to see more of this.

We’re in this together,

Joyce