The well-traveled classified government documents that federal agents seized from Donald Trump’s Mar-a-Lago estate in Palm Beach will get a return trip to South Florida and be placed in a special room in downtown Miami for inspection by prosecutors and defense lawyers who have security clearances.
But it remains to be seen which of the 340 documents or how many will be presented to jury members as they sit in judgment of the former president, who is charged with violating the Espionage Act in a 37-count indictment. He is accused of hoarding the classified papers and obstructing government efforts to retrieve them. Trump pleaded not guilty to all charges, as has Waltine Nauta, a personal aide accused of helping his boss conceal documents at his Mar-a-Lago estate in Palm Beach
Whether any of the classified papers will be introduced into evidence, or if the jurors will be given court-approved summaries as a way of safeguarding national secrets, will be determined under guidelines contained in the 1980 Classified Information Procedures Act (CIPA). The law outlines procedures for presenting redacted documents to the jury, or summaries that would serve as substitutes designed to avoid exposing government secrets. It was designed, legal experts say, to avoid “graymail,” the threat of revealing national secrets as way to manipulate legal proceedings.
On Tuesday, U.S, District Judge Aileen Cannon is scheduled to conduct an initial hearing on handling classified documents in the case, which appears to be headed for trial in her Fort Pierce courtroom. She has set a tentative Aug. 14 start date. But the government has requested an extension to Dec. 11 while the Trump defense team is seeking an indefinite delay for a variety of legal and political reasons. In a response last Thursday, the government rejected them all.
According to a Department of Justice synopsis of CIPA, it’s up to the prosecutors to take “reasonable precautions against the unauthorized disclosure of classified information during the case. This responsibility applies both when the government intends to use classified information in its case-in-chief as well as when the defendant seeks to use classified information in his/her defense.”
“CIPA is a procedural statute; it neither adds to nor detracts from the substantive rights of the defendant or the discovery obligations of the government,” the DOJ adds. “Rather, the procedure for making these determinations is different in that it balances the right of a criminal defendant with the right of the sovereign to know in advance of a potential threat from a criminal prosecution to its national security.”
Busy venue
Over the years, the federal Southern District of Florida, which stretches from Key West to Fort Pierce, has been the venue for a number of cases involving classified government documents.
In 2007, three men, including alleged “dirty bomber” Jose Padilla, were convicted in Miami of supporting extremist groups including al Qaida. In 1992, a Miami jury convicted deposed Panamanian leader Gen. Manuel Noriega on drug trafficking charges.
Today, as the government squares up its case against Trump, an unrelated case involving 11 defendants is headed for trial before U.S. District Judge Jose Martinez in the July 2021 assassination plot that ended with the death of President Jovenel Moise in Haiti.
The use of classified documents appears to be likely in that case, too, as prosecutors have turned it into a national security proceeding to protect undercover informants, according to court files and published reports. Martinez has scheduled a CIPA hearing similar to the one to be conducted by Cannon in the Trump case.
“It’s a general hearing to discuss what the parties expect they are going to be doing,” said Miami criminal defense lawyer Kenneth Swartz, who represents Joseph Vincent in the Haiti case. Swartz represented Adham Hassoun, a Sunrise computer programmer and co-defendant in the Padilla case.
“The defense may say ‘we want to offer this classified evidence in the trial’ and the government may say they want to have a chance to review it,” Swartz said.
Both Swartz and Jon May, a co-counsel who helped defend Noriega in the 1990s, said CIPA heavily restricts the inspection of classified documents that a defense team would like to show a jury.
“The defense can’t get access to anything until there is a court security officer,” May said. “And then only if they get (security) clearances.”
Papers can be viewed only under close supervision of a court security officer employed by the Department of Justice. Any motions to the court based on the documents must be filed under seal, and then reviewed by a judge who rules on their relevance and decides whether the jury can view them.
“The way CIPA works is that if the government wants to provide classified information into evidence but does not want to offer the actual native classified information, the statute allows them to give the judge a summary which the judge can review,” Swartz said. “If the judge approves that summary, it is given to the defense. That’s a key part of this.”
Secrets in the SCIF
In their Thursday filing, lawyers for Special Counsel Jack Smith said they would begin sharing “the large majority” of classified documents once the Trump defense lawyers filed the necessary forms to receive security clearances.
Two of those lawyers, Florida-based Christopher Sise of the law firm Continental PLLC, with offices in Coral Gables and Tallahassee, and Todd Blanche of New York said in court papers that they had filed the necessary documents to obtain their clearances. Sise said he would submit fingerprints to federal authorities in West Palm Beach on Monday.
Nauta’s lawyers, Sasha Dadan of Fort Pierce and Stanley Woodward Jr. of Washington, D.C., also have said they had completed the application process to obtain their security clearance.
Although the trial appears to be destined to take place in the Southern District of Florida’s Fort Pierce division, all of the government’s classified documents retrieved from Trump’s estate will have to be viewed in a “SCIF,” which is shorthand for Sensitive Compartmented Information Facility. It is located in the federal court complex in downtown Miami.
In 1991, a SCIF existed in the basement of the Neoclassical David W. Dyer Federal Building and U.S. Courthouse at the time of the Noriega trial. May spent hours in the SCIF reviewing documents that he and his co-counsel Frank Rubino of Miami hoped would be ruled relevant by U.S. District Judge William Hoeveler. The defense wanted to show how Noriega helped U.S. intelligence agencies in matters other than interdicting drug traffic. But the judge disallowed the information.
“To the extent we were showing Gen. Noriega was a leader in the fight against drug trafficking, that was relevant,” May said. “But whether Gen. Noriega was assisting the United States in thwarting terrorists or setting up listening posts to spy on Russian trawlers … Judge Hoeveler determined that was irrelevant to the charges.”
More than a decade later, Swartz said he spent hours in the same SCIF, sifting through classified documents during the Padilla case on behalf of his client, Hassoun, and the experience wasn’t pleasant.
U.S. Senate Television/CNP/Zuma Press/TNS
U.S. District Judge Aileen Cannon, shown testifying during her 2020 confirmation hearing, will decide what types of classified documents can be entered into evidence for the jury in former President Donald Trump’s Espionage Act case.
“It did make it difficult for preparing the case,” Swartz said. “If I recall, we used a laptop computer dedicated to that office. We had to type up motions and leave them there for the court security officer to hand to the judge. I remember spending weekends in that building, hours at a time, going through materials, and you were stuck there. You didn’t have access to a telephone, and I don’t think you could call anybody outside.”
Since then, the SCIF has been relocated because the Dyer building has been shuttered over environmental concerns arising from asbestos and mold.
The SCIF is now located in another basement in the adjacent C. Clyde Atkins U.S. Courthouse, the government confirmed in its Thursday court filing in the Trump documents case. It is now the place where sensitive papers can be viewed by lawyers representing Trump and his aide, Nauta.
What will the jury see?
For the government, what ultimately is presented to the jury is likely to be designed to show how Trump allegedly endangered national security through his possession and handling of the classified documents he transferred out of Washington. Conversely, the defense would want to minimize a picture of any alleged harm, even to the extent of trying to show that a document might have been “overclassified.”
In an interview and an article he authored last November for the online legal site Justia, May noted that the Espionage Act “is not limited to classic spying.” One can violate the law, he said, without providing secret papers to a foreign power. Second, it relates to anything that applies to the national defense. In addition, a violation can occur simply by allowing defense materials to be moved from their “proper place of custody.” Finally, the law can be violated through “gross negligence.”
In the courtroom, the jury would not be barred from seeing sensitive documents or a version of them under CIPA.
“The jury is permitted to see classified information,” May said. “But at the same time the government doesn’t want to show any more than they have to. You can’t automatically assume the defense wants the jury to see all of the details of classified information.”
“You can see a circumstance where the government wants to argue that a particular document (held by Trump) posed a huge threat to the United States,” he added. In turn, the defense might not “want to acknowledge that any such information was contained in that document.”