HOW TRUMP’S LAWYERS COULD WIELD THE CLASSIFIED INFORMATION PROCEDURES ACT (CIPA) AS A SWORD AGAINST THE GOVERNMENT’S ESPIONAGE ACT PROSECUTION

Experts on the disclosure of classified information--law professors, government officials, defense counsel, journalists, pundits—will tell you that CIPA cannot be used by defendants as a device to discover the government's evidence before trial, or as a means to attack the government’s case at trial. Usually they are right. But not this time.

         In this essay, I will explain how, in the unique circumstances of the government's prosecution of Donald Trump for violation of the Espionage Act, defense counsel could use CIPA to severely damage the government's prosecution.

         Before getting to that point, it will first be necessary to touch on the factual allegations against Trump, discuss relevant aspects of the Espionage Act, explain in some detail CIPA procedures, and finally, address how those procedures can be turned against the government.

         Whether you are an expert in this field, a journalist, a lawyer, or a layperson, I hope you will take away from this essay a better understanding of the difference between what the law says, what it was  intended to do, and how it can be used creatively for the defense of an accused.

         A. Donald Trump’s Indictment in the District Court for the Southern District of Florida.

        1. The facts.

        There is no substitute for reading the indictment to understand the government’s allegations.  If you haven't already, I strongly suggest you do. This summary is not intended to provide anything more than what you need to know to follow this discussion.

         When Donald Trump left the White House on January 20, 2021, he took with him "scores of boxes" boxes containing, along with personal effects, classified documents. According to the indictment, Trump "was not authorized to possess or retain" those documents. (Indictment "I" para, 4).

         These documents were taken to his Palm Beach, Florida residence at his resort, Mar-a-Lago, and stored at various locations in the resort, including the ballroom, shower, office, Trump's bedroom, and a storage room. None of these locations were authorized to store classified documents. (I – 5).

         The National Archives subsequently learned about the transfer of the documents and repeatedly requested their return to the Archives. (I – 37). Trump (I refer to all actions to possess or conceal these documents as taken by Trump, although they were physically done by others, and some actions may have been accomplished without his knowledge of the particulars because the government contends these actions were all taken at his direction) provided the Archives 15 boxes of documents. (I – 46).

         When the Archive staff examined the material in these boxes, they discovered government documents of which 197 of them had classification markings. (I – 48).

         The Archive thereafter notified the FBI of its discovery.

         When the Justice Department reviewed the documents, government officials concluded that they had not recovered everything that Trump possessed.

         In the Spring of 2022, the FBI opened a criminal investigation, and a short time later, prosecutors impanel a federal grand jury (I – 7, 51).

         The FBI's review of the documents confirmed that some number of these documents contained highly classified material, including information about foreign intelligence surveillance and information gathered from human intelligence.

         On May 11, 2022, the grand jury issued a subpoena directing Trump to produce all classified documents in his "possession, custody, or control." (I – 52).

         In response to the subpoena, Trump directed his executive assistant and now co-defendant, Waltine Nauta, to remove 68 boxes from the storage room and take them to the residence (I – 58). Trump subsequently directed Mr. Nauta to return 30 boxes to the storage room. (I – 62). The removal and return were recorded on video.

         A Trump lawyer thereafter searched the boxes in the storage room and found 18 documents with classified markings. (I – 64). Upon reporting this information to Trump, Trump suggested that the lawyer remove anything damaging before turning these documents over to the government. (I – 66).

         Subsequently, at a meeting between a Trump lawyer and government officials, the lawyer turned over 38 documents containing classified markings (I – 8(b)) and represented that based upon information that had been provided to her, these were the only documents remaining that were responsive to the subpoena (I – 69).

         From video recordings obtained by grand jury subpoena to Mar-a-Lago, the FBI learned about the removal of boxes from the storage room. (I – 73).          

         In July 2022, the FBI executed a search warrant at Mar-a-Lago and discovered over 11,000 government documents and an additional 102 with classification markings. (I – 8(c)).

         A year later Trump was indicted.

         After the indictment, Trump made various public statements admitting that he knew the documents were classified but asserting that he had a right to review all the items contained in the boxes before they were returned to the United States.

         2. The Crimes Charged in the Indictment.

         Counts 1-31 allege that Trump willfully retained national defense information in violation of 18 U.S.C. §793(e). I have highlighted those portions of this provision that apply to the facts alleged.

(e) Whoever has unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it….

Shall be fined under this title or imprisoned not more than ten years, or both.

         Five features of this statute should be noted. First, it is not limited to classic spying. 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 national defense. Third, it does not depend upon whether documents are stored in a secure location. So, under this provision, it does not matter if Trump arranged for national security documents to be placed in the Mar-a-Lago ballroom or bathroom. Fourth to prove that Trump committed a crime, the government must demonstrate that his possession or control over the documents was not authorized. Finally, the government must show that he willfully retained the documents and that he failed to deliver the documents to the National Archives

         Importantly, the statute makes the issue of classification irrelevant.  The statute does not require that the material possessed or controlled be classified, only that it relates to the national defense. One would think that this is a home run for the government. On its face, it relieves the government from the need to prove that a particular document was classified, or that Trump knew that a particular document was classified, or that he was not permitted and had not declassified a particular document. These issues are simply not relevant. But that is the government's Achilles heel.

         Count 32 alleges a conspiracy to obstruct justice under 18 USC 1512(k). That statute provides:

(k)Whoever conspires to commit any offense under this section shall be subject to the same penalties as those prescribed for the offense the commission of which was the object of the conspiracy.

The offenses the government has alleged Trump and Nauta conspired to commit are 1512(b)(2)(a) which criminalizes engaging in misleading conduct toward another person and corruptly persuading another person to withhold a record or document or other object from an official proceeding and 1512(c)(1) which criminalizes corruptly concealing a record or document or object from an official proceeding.   

         Although this crime does not sound as sinister as a violation of the Espionage Act, it actually carries a higher penalty, 20 years versus 10. The government can lose the first 31 counts and still score a tremendous victory if it can convict Trump of conspiracy to obstruct justice.

         Trump is also charged with other offenses related to the conspiracy to obstruct justice: obstructing justice in violation of 18 U.S.C. §§ 1512(b)(2)(A), and (c)(1) (Counts 33 and 34), concealing a document in a federal investigation in violation of 18 U.S.C. § 1519 (Count 35), and a false statements concealment scheme in violation of 18 U.S.C. §1001(a)(1) (Count 36). Defendants Trump and Nauta are each charged with making false statements in violation of 18 U.S.C. §1001(a)(2) (Counts 37 and 38, respectively).

         3. Into The Weeds With CIPA

         Those readers who are familiar with CIPA's various procedural requirements can skip this section, but if you haven't read CIPA recently, you might want to consider reviewing this summary before going on to the next section.

         On June 23, 2023, the United States filed a motion seeking a protective order under CIPA Section 2. See 18 U.S.C. App. III §§ 1–16. In its motion, the government stated that it would offer classified information in its case. This initiated the CIPA process and a hearing under this motion is scheduled for Tuesday, July 18.

         As noted, the government has asked that the court issue a protective order under the provisions set forth in CIPA Section 3. 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 handles classified information provided to 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.

         As is typical in cases involving national security, the government's motion included an extensive discussion of case law that supports its interpretation of the statute. This is intended to educate the judge as to the requirements of a procedural scheme they are not likely to have had any experience with, and to convince the court to take a highly restrictive view of the burden upon the defense to justify the admission of classified evidence.

         CIPA is intended to be a purely procedural mechanism, designed only to protect classified documents consistent with the right of a defendant to a fair trial. It was not intended to create any substantive rights to discover evidence not otherwise discoverable under the Federal Rules of Criminal Procedure or enable the defense to present evidence not otherwise admissible under these same rules.

         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, CIPA Section 4 permits the government to redact the document blacking out classified information or provide the defense with a substitution summarizing the contents of the material, or a statement of admitting facts that that the classified information would tend to prove. Significantly, these alternatives to full disclosure are made ex parte and in camera (in closed proceedings without the presence of defense counsel) so the defense has no input on the adequacy of the redaction, or summary, or statement of facts.

         Thus, the defense is forced to rely on the assumption that the court is capable of protecting 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.

         CIPA Section 5 requires the defense 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," early in the development of CIPA jurisprudence, the Eleventh Circuit Court of Appeals held that the defendant must provide notice that specifically describes the evidence she seeks to present. United States v. Collins, 720 F.2d 1195, 1200 (11th Cir. 1983).

         Based upon that notice, CIPA Section 6 permits the government to request that the court 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 summary of the document, or a statement of facts that the document would establish. If the Court finds that based on its understanding of the defense, none of these alternatives is sufficient to ensure that the defendant receives a fair trial, the Court can order that the original classified document be provided to the defense to use at trial.

         If the government refuses to disclose the document in any form (usually at the instance of the intelligence community or the military) the Attorney General must file a statement with the Court stating that the that the disclosure would cause identifiable damage to national security and why. At this point, the Court has several sanctions it can impose. The court can strike testimony, make a finding of fact against the government, dismiss counts, and even dismiss the prosecution entirely. CIPA Section 6.

         B. CIPA Rides to the Defense, of the Defense

         We now have the tools to understand how CIPA could be used to undermine what otherwise appears to be an unassailable case. 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 and concealing government documents regardless of whether they are classified. On the other hand, if the government argues that Trump removed or concealed documents "relating to the national defense," Trump can argue that this is a jury question. If the court agrees, the court may accept Trump's lawyers' argument that substitutions and redactions are not sufficient to make their case to the jury and that indeed, they are entitled to call high-ranking government officials to support their argument. If the government declined to provide unredacted documents or agree to permit those witnesses to testify, then the court could dismiss the charges that are based on those documents or even the entire case.

         In an attempt to prevent this from happening, prosecutors will argue that the Court should instruct the jury that the documents in question relate to the national defense based solely on the fact that such determination was made when the decision was made to classify them in the first place. In all likelihood, Judge Cannon will reject that argument, not because she is partial to the defense, but because the argument is specious.

         Each year 50 million documents are classified. Oona Hathaway, a professor at Yale Law School and former special counsel at the Pentagon told the New York Times that only 5 to 10 percent warrant classification. When Barack Obama was president, he signed into law the Reducing Over-Classification Act, an admission by the Executive that many classified documents should not be classified. German Lopez, Too Many Top Secrets, NYT Jan. 27, 2023. https://www.nytimes.com/2023/01/27/briefing/classified-documents-government.html.

         Ironically, the most sensitive information, that is, those documents which pose the greatest threat to national security, and which consist of material that would have the greatest persuasive effect upon a jury, are the most vulnerable to the attack above.

         Consider this. It has been widely reported that Israeli agents were responsible for the roadside assassination of Iran's main nuclear scientist, Mohsen Fakhrizadeh, their Oppenheimer. Ronen Bergman and Farnaz Fassihi, "The Scientist and the A.I.-Assisted, Remote-Control Killing Machine," NYT, Published Sept. 18, 2021. Under long-standing policy, Israel has never confirmed its responsibility for the killing.

         Now look at part of a cable from the CIA Chief of Station in Jerusalem, Felix Leiter, to CIA headquarters in Langley, Virginia on November 27, 2020. [War of the Worlds Disclaimer—this is entirely made up].

         At 23:30 I received a message from Gabriel Allon, head of HaMisrad. He stated that operation "Nowhere to Hide" was a success and that intercepted Iranian military communications confirm that Mohsen Fakhrizadeh is dead. As intended his wife was not hurt.

          Allon requested that I convey his gratitude to Director Haspel for the satellite linkup. Without that assistance, Israeli agents would likely have been killed in the operation.

         Plainly, if such a document were real, storing it in an unsecured location would be a major concern for both the United States and Israel's intelligence services. Israel has refused to confirm or deny reports that it was responsible for Fakhrizadeh's assassination (this part is true) and no one had claimed that Israel had help from the United States (also true). Indeed, the United States claimed that it was only contacted by Israeli officials shortly after the operation was completed (again true). Finally, there are several counts in the indictment that involve documents of importance to national security that have restrictions beyond those that apply to items marked only Top Secret, so the hypothetical cable above is a realistic depiction of the nature of the evidence the Special Prosecutor intends to offer.

         Back to our story. This cable is contained within the material referred to in Count 20 of the indictment. The government's option to redact the document is not viable--everything would be blacked out. It is difficult to imagine how a statement of facts would satisfy the intelligence community. But what about a summary?

         Would a summary such as "The document memorializes assistance the United States provided a foreign government," be sufficient to demonstrate that it was "related to the national defense," an element of the crime the government will be required to prove? No. That would make it too easy for the defense to argue that it was not.

         What if the substitution said, "The document memorializes assistance the United States provided a foreign government in an operation." No. The defense could claim that the operation was humanitarian.

         What if the substitution said, "The document memorializes assistance the United States provided a foreign government in a military operation." Certainly closer, although not accurate, since this was not carried out by the Israeli Defense Forces. However, Judge Cannon is likely to agree that such a distinction is immaterial and the government is likely to be satisfied that this is all it needs to prove up this count of the indictment.

         But is it sufficient for the defense?  Of course. The defense does not want the actual details of the cable revealed to the jury. As written, the substitution enhances the ability of the defense to contend that the government failed to prove beyond a reasonable doubt that this document was related to our national defense. This puts the prosecutors in a difficult position. The best rebuttal is the details revealed in the document, but they are prohibited from disclosing those details.

         In the actual prosecution, this will be an ongoing problem for the government. This would be an easy prosecution if the government had only to prove that the documents were classified. Trump's knowledge that the documents were classified and his intent to retain classified documents has been established through his statements. But that is not the issue. The issue is whether the documents relate to the national defense.

         Of course, the government only needs to convince the jury that Trump is guilty of one of the 31 Espionage Act counts to subject him to ten years in prison. If one of the counts pertains to the document he discussed on the golf course to his foursome, the government's case may be unassailable as to that count, given his recorded statements that demonstrate without question, that it related to the national defense.

         Trump's counsel could also engage in a riskier strategy by refusing to obtain the clearances needed to review classified documents. Attorney Michael O'Kane did just that when he defended defendant Daniel Miranda during the prosecution of General Manuel Antonio Noriega in the early '90s. By not subjecting himself to an agreement to keep America's secrets, secret, he could avoid being held in contempt or prosecuted if he unknowingly revealed a secret or did so from information available from a public source, which in fact happened.

         This strategy is less reckless than it sounds because the prosecutors still must introduce at trial the summaries of the classified documents that are the subject of the 31 Espionage Act counts. But now defense counsel would be freer to disclose particulars that might be helpful to the defense.

         D. Obstruction and False Statement Charges

            What about the obstruction and false statement counts? How will CIPA apply to these allegations? How could Trump's lawyers use CIPA to undermine these counts? It doesn't, they can't, but Trump's lawyers have an even more powerful strategy they could use that might devastate the prosecution as to all crimes charged in the indictment. You can look for that discussion next Monday.  Same bat time, same bat Substack.