Sometime within the next six months, former President Donald J. Trump will be indicted for violating the Espionage Act arising from his possession of classified documents following his departure from the White House.* Although Attorney General Merrick Garland has not yet given the green light to prosecute Trump, the addition of David Raskin, a prosecutor with extensive experience trying terrorism cases, means that the Department of Justice is no longer considering whether Trump committed a crime, but rather, the best strategy for prosecuting him.
Just what crime will Trump be charged with? Among others, violation of the Espionage Act. That act states in part:
(f)Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—
Shall be fined under this title or imprisoned not more than ten years, or both.
There are four features of this statute that should be noted. First, it is not limited to classic spying. (According to the U.S. Court of Military Appeals, “it is clear that Congress intended to create a hierarchy of offenses against national security, ranging from ‘classic spying’ to merely losing classified materials through gross negligence.”) One may commit this offense without providing or intending to provide secret documents to a foreign power. Second, it is not limited to classified documents; it applies to anything related to the national defense. Third, one can commit this offense merely by permitting material relating to national defense to be removed from its proper place of custody. Finally, the mens rea, or state of mind, required for the commission of this offense is lower than is traditionally required for most federal crimes. One can violate this offense through gross negligence alone.
(In the event that Trump is prosecuted for this offense and convicted, the constitutionality of this lower standard of intent will certainly be an issue on appeal.)
Although the universe of evidence that the United States has amassed against Trump is not completely known, a great deal is known about what was removed from the White House, what was produced by Trump upon the request of the National Archives and the Department of Justice, and what was ultimately found at Mr. Trump’s residence. However, it is inconceivable that the government would go forward with this prosecution unless the government also possesses incriminating testimony from members of Trump’s staff or his close associates.
As to what was obtained from Trump, this is what is known:
- Former President Donald J. Trump left the White House in January 2021. Upon Trump’s leaving office, movers transferred boxes of documents to his personal residence in southern Florida. Donald J. Trump v. United States (Opinion of U.S. Court of Appeals for the Eleventh Circuit on appeal by the United States from order for appointment of special master).
- Almost exactly one year later, Trump’s staff transferred fifteen boxes of documents to the National Archives. The National Archives reviewed the contents of the boxes and found “a lot of classified records.”
- Subsequently, the FBI developed evidence that more boxes containing classified information remained at Trump’s residence. The Department obtained a grand-jury subpoena directed to Trump’s custodian of records and requested all documents or writings in Trump’s custody or control bearing classification markings.
- In response to the subpoena, Trump’s representatives produced an envelope containing thirty-eight such documents. At the same time, his representative stated that she was authorized to certify that a “diligent search was conducted” and that “[a]ny and all responsive documents” accompanied the certification. The envelope contained classified documents.
- The FBI developed further evidence that more classified documents remained at Trump’s residence. In August 2022 a federal magistrate authorized the execution of a search warrant at Trump’s residence in Mar-a-Lago, a golf resort owned by Trump. When the FBI executed the search warrant, it seized 33 items of evidence (mostly boxes) containing approximately 11,000 documents and 1,800 other items. Among the boxes, thirteen contained documents with classification markings, and three classified documents were found in Trump’s desks. All told, the search uncovered over 100 documents marked confidential, secret, or top secret.
Although this statute does not require that the material removed be classified, only that it relate to the national defense, the government has stated in documents filed with the district court that some of the documents removed were classified. Indeed, the government has stated that some of the documents were marked “top secret.” Moreover, the press has reported that some of the documents marked top secret concern matters of utmost importance to the security of the United States including the nuclear capabilities of an unidentified foreign government.
The government’s first challenge is how to prosecute a case where its evidence consists of the very classified material it wants to keep secret. Usually, the use of classified information in a federal criminal case is not a problem for prosecutors. This is because the Classified Information Procedures Act (CIPA) provides a procedural mechanism for the preparation and introduction of redacted documents, or substitutions, or stipulations that prevent the disclosure of government secrets. But as we will see, this is not the usual case.
Because the government intends to introduce classified information, the government will file a motion for a pretrial conference for the Court to consider matters relating to classified information. At that conference, the court will set a date for the government to provide discovery to the defense, set a date for the defense to notify the government that it intends to present classified information, and what procedures will be used to determine the use, relevance, or admissibility of classified information.
The government will also ask that the court issue a protective order. The purpose of this provision is to regulate how the government provides classified information to the defense; but it also functions to put restrictions on how defense counsel handle classified information provided them. For instance, it is common for a protective order to direct that defense counsel obtain a security clearance as a condition of receiving classified information. The Court will also appoint a Court Security Officer who will assist both parties in obtaining security clearances and establish a location where classified information can be reviewed and instructions on how such material must be handled.
At its heart, CIPA is a procedural mechanism intended to protect classified documents consistent with the right of a defendant to a fair trial. If requested by the defendant, Rule 16(a)(1)(e) of the Federal Rules of Criminal Procedure requires the government to produce for the defendant’s inspection any documents it intends to use at trial in its case-in-chief. CIPA does not supplant this rule, but it does permit the government to provide documents that purport to satisfy the rule without disclosing classified information. To that end, the government is permitted to provide the material with the classified information redacted, or to provide the defense with a substitution describing the contents of the material, or a stipulation as to a fact that would be established by the material. Significantly, these alternatives to full disclosure are made ex parte and in camera, so the defense has no input on the adequacy of the redaction or substitution or stipulation. Essentially, the defense is forced to rely upon the assumption that the court will protect the defendant’s interests. But there is a huge flaw in this assumption. The court’s determination of the adequacy of the government’s alternatives is made very early in the case, when the court is in the worst possible position to make any such determination because it knows little about the government’s case and nothing about the defense. For this reason, analogies to other situations where a party can expect that a court’s knowledge and experience are sufficient to result in a just ruling simply do not apply.
In the next phase of the CIPA proceedings, the defense is required to provide written notice specifically describing any classified information it intends to rely upon at trial. Although the statute only requires the defendant to provide “a brief description of the classified information,” courts have held that the defendant must provide notice that specifically describes the evidence she seeks to present. Then the government can ask the court to conduct a hearing to determine the use, relevancy, and admissibility of the evidence. This is an opportunity for the government to completely shut down the defendant’s effort to rely upon classified information. If the court finds that the proffered evidence is not relevant to any issue in dispute at trial (and even if the court finds it is relevant, the court has the authority to exclude the evidence as cumulative, prejudicial, confusing, or misleading), that is the end of the story. The evidence cannot be used in any form.
If, on the other hand, the Court holds that the evidence is relevant, then the government is given the opportunity to provide a redacted document, a substitution for the document, or a stipulation admitting a fact that the document would establish. If the Court finds that based upon its understanding of the defense, none of these alternatives is sufficient to ensure that the defendant receive a fair trial, the court can order that the original classified document be provided to the defense to use at trial.
The ball is now in the government’s court. If the government does not want to produce the document, the Attorney General must file a document with the Court stating that the United States will not provide the document for use at trial. At this point, the Court has a number of sanctions it can impose. The court can strike testimony, make a finding of fact against the government, and even dismiss the prosecution entirely.
Two fundamental problems face the prosecution. The first is that none of Trump’s lawyers can control him. Indeed, during the entire time of Trump’s presidency, well qualified advisors departed or were dismissed after Trump refused to follow their advice. Nothing has changed since he left office. Initially, Trump was represented by very fine criminal defense counsel who have since disappeared from the stage. The quality of some of his current lawyers is dubious; various courts have criticized them for making assertions of fact without evidence to support it and filing scattershot legal arguments that lack reason and coherence or any basis in fact. Not surprisingly, top-notch counsel from around the country have declined to represent Trump precisely because they know that they cannot control him.
This presents a very dangerous situation for the government. If Trump’s lawyers cannot convince him to do what is in his best interests, it is unlikely that they will be able to convince him to obey any protective order issued by the Court instructing him not to blurt out classified information.
The Supreme Court of the United States has held that a trial court, when “confronted with disruptive, contumacious, stubbornly defiant defendants,” must be permitted certain remedies in order to restore orderly proceedings, including, “as a last resort,” binding and gagging the defendant. Relying on this decision, one federal court upheld an order gagging a defendant where the defendant was instructed not to tell the jury that he had requested to take a lie detector test, but despite that warning, told the jury just that.
How will the government prevent him from disclosing the material possessed at Mar-a-Lago? Or for that matter, any other information he knows from his time as President? While the court has the constitutional discretion to muzzle Trump, consistent with the recommendation of the Supreme Court, a trial court would most likely remove Trump to a different room with closed circuit TV to watch the case. Naturally this will raise other constitutional issues since Trump will surely claim on appeal that banishment interfered with his constitutional right to confer with his attorney.
The other problem facing the prosecutors is one inherent in the structure of CIPA itself. CIPA was enacted to address the real problem of greymail. Greymail is the practice of threatening the government with the disclosure of classified information in order to force the government to drop any prosecution of the defendant. CIPA has put a halt to that practice by providing a means for the government to prosecute the defendant in a national security case while protecting the defendant’s right to a fair trial. But in a genuine CIPA case, all parties are in agreement that the material in question is classified.
Donald Trump has publicly stated that any classified material he possessed was not classified because he declassified it. If in fact a defendant seeks to introduce a document or oral testimony that is not classified, Section 5 of CIPA does not apply so he is not required to disclose it before trial.
Thus far we have not considered what arguments Trump’s lawyers could make to compel the government to produce unredacted documents the government contends are classified. The key to Trump’s strategy here is the language found in the Espionage Act that seeks to protect material “relating to the national defense.” This language is a double-edged sword for the government. On the one hand, Trump can be prosecuted for removing government documents regardless of whether they are classified. On the other hand, if the government argues that Trump endangered the United States by removing documents “relating to the national defense,” Trump can argue that this is a jury question and that he is entitled to present the unredacted documents to the jury, even if they are classified.
To deal with this situation, the government can ask that unredacted documents be shown only to the jury but Trump has a constitutional right to a public trial and the Court cannot prevent defense counsel from arguing to the jury why a particular document does not relate to the national defense or Trump from addressing that same question should he testify.
Federal trials are trial by ambush. The defense is not entitled to know the identities of witnesses before trial; the defense cannot take depositions of any witnesses it knows about; unless a witness has testified before a grand jury, there are no statements of the witness that are required to be disclosed to the defense; and finally, even where a witness has testified before a grand jury, the prosecutor need not disclose it to the defense until after the witness has testified, and when that is done, counsel has no time to conduct any investigation of that statement.
By the same token, the defense does not have to disclose to the government evidence it intends to use in cross-examining the government’s witnesses. And if the defense does not request the government to disclose documentary material the government intends to use in its case-in-chief at trial, the defense is under no obligation to disclose the evidence it will use in its case-in-chief either.
Knowing how this game of chess is likely to play out, the government will try to convince the court to compel the defense to disclose at the beginning of the defense case all the documents it intends to offer in rebuttal. It may well be successful and given that eventuality, defense counsel should ask the court to require the government to produce a witness and exhibit list at the start of trial along with any statements by the government’s witnesses. That is the only way that a balance can be maintained between the parties.
But none of this will solve the government’s ultimate problem. Donald Trump has an absolute right to testify in his own defense. If Trump’s lawyer is troubled by Trump’s expected testimony, counsel can refuse to participate in that examination, in which case Trump can simply talk to the jury.
Food for thought.
* My certainty that Mr. Trump will be indicted is based upon my experience as a former federal prosecutor informed by over 37 years of practicing federal criminal defense. I have no inside information as to what any of the prosecutors involved in the Trump investigation are doing or thinking.