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How classified evidence could complicate the Trump Documents case

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Lawyers for former President Donald J. Trump told the judge overseeing his documents, claim they have begun obtaining security clearances, the first step of what will likely be a major fight over classified evidence before his trial.

Mr. Trump faces 31 counts of unauthorized retention of national security secrets under the Espionage Act, along with allegations that he obstructed government efforts to retrieve sensitive files — including by defying a subpoena.

Here we take a closer look at the difficult legal issues raised by the role of classified evidence in the case.

The Espionage Act is a World War I law that makes it a crime to mishandle national security secrets. To prove that Mr. Trump violated the provision of the law chargedprosecutors must show that he possessed, without authorization, closely guarded information “pertaining to national defense” that could harm the United States or aid a foreign adversary, and that he did not return it to the government.

Each of the 31 counts is based on a different sensitive document the FBI found during its court-authorized search of Mr. Trump’s club and estate, Mar-a-Lago. As described in the indictment, 21 are marked “top secret”, nine marked “secret” and one with no classification stamp that contained limited information on “military contingency planning”.

It is a threat by a defendant to release classified information during a trial in the hopes of forcing the government to drop a criminal charge. While the government could choose to release such information so that it could be freely discussed in a public courtroom, security officials may view that as too risky. But the Constitution gives defendants the right to a public trial and the public the right to attend trials.

Joshua L. Dratel, a security-clearance attorney who has handled terrorism cases involving classified evidence, said defense and intelligence officials often declined to provide information that prosecutors could use in prosecuting a case.

“It is routine, if not invariable, that you get a plea deal in a case where the government says, ‘If we have to make you a secret discovery, this offer is no longer on the table.’ “That’s because there’s tremendous tension between intelligence agencies and prosecutors that defense attorneys can exploit.”

However, Mr Trump is not expected to accept a plea deal.

The jury will presumably need to see at least parts of each of the 31 files named in the indictment to determine whether they meet the standards of the Espionage Act. But the problem is probably 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 try to use some of it during the trial.

If defense lawyers can find things in the public domain that are similar to what is in one of the 31 documents, they may want to bring it up at trial to argue that the information was not kept closely or that the disclosure of it the United States – which itself would disclose the contents of the documents.

Congress passed the Classified Information Procedures Act, or CIPA, in 1980 in an effort to reduce the likelihood that graymail would derail the prosecution of people in cases involving national security secrets. (Coincidentally, the bill was introduced in 1979 by Senator Joseph R. Biden Jr., who was the chairman of the Judiciary Committee.)

CIPA has developed ways for prosecutors, lawyers and judges to frame classified information so that it can be used publicly without compromising protected information such as sources and methods. Before a trial even begins, any process involving statute usually takes place behind closed doors.

In the documents case, the trial judge, Aileen M. Cannon of the Southern District of Florida, must agree in advance that any proposed use of CIPA would not violate Mr. Trump’s right to due process. Mr. Trump also needs representation from one or more security-cleared lawyers to participate.

“It’s a very complicated and lengthy process,” said Barry Pollack, a lawyer who also has a security clearance. “Often there are hearings that are not open to the public, where the lawyers and the judge literally go through documents line by line to decide which sentences and which individual words can and cannot be used in a public court hearing.”

It allows a court to block, censor or replace classified evidence under certain circumstances.

Prosecutors can try to use the law to limit evidence they turn over to the defense in the discovery phase. And defense attorneys must tell the judge and prosecutors before trial what classified evidence they plan to present, arguing that it would be material, and explaining how they plan to use it.

Judge Cannon could block such evidence, allow the administration to redact parts of it, or allow a substitution that captures the essence — so long as she decides it doesn’t interfere with Mr 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 the government’s intelligence on the group’s fundraising. Both sides then agreed on a statement to show the jury at trial that they recited certain facts without revealing how they were taught.

As in other such cases, defense attorneys may object to proposed redactions or substitutions, arguing that full details are necessary. The prosecution can appeal Judge Cannon’s decisions before trial, but the defense would have to wait until after any conviction.

It is a judicially created process that’s similar to CIPA substitutions with one key difference: the jury sees the classified evidence, while members of the public in the gallery get less information. In CIPA, on the other hand, both the jury and the public see the same thing.

For example, under the silent witness rule, a witness and the jurors could hand over a document that is still classified but would not be made available to the public. During the testimony, the witness may refer to ‘the case in the third paragraph of the document’. By looking at the document and following along, the jurors would know what the witness was specifically discussing, but onlookers would not.

Some appeals court rulings have validated CIPA in various contexts, such as rejecting arguments that it deprived the defense of information it should be entitled to or that it violated a defendant’s right to confront their accuser. The Supreme Court has never considered the law, which could give Trump a basis to appeal any conviction if the trial used redacted or substituted evidence under that law.

There is even less precedent about the silent witness rule. The Court of Appeals for the Fourth Circuit, in Richmond, Virginia, last year approved the limited use in a case in which a former intelligence official was accused of violating the espionage law by providing limited information to China. But Judge Cannon is not bound by that precedent because she is overseen by the Atlanta Court of Appeals.

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