For the sake of convenience, former President Donald Trump now wants the right to discuss with his attorneys at his Palm Beach home the very classified government documents that he is accused of mishandling, according to federal prosecutors.
They oppose the idea.
Specifically, Trump’s lawyers have asked that he be allowed to hold those consultations at his Mar-a-Lago estate in Palm Beach, or at his summer home in Bedminster, New Jersey, according to a Thursday filing by federal prosecutors working for Special Counsel Jack Smith.
The disclosure came as the government filed a superseding indictment against Trump, adding new charges in the case as well as a new co-defendant, Carlos De Oliveira, a Mar-a-Lago employee accused of helping the former President hide sensitive papers from FBI agents.
By law, classified documents that are a part of federal criminal cases are handled, discussed and reviewed in a government-controlled location called a sensitive compartmented information facility, or SCIF.
“There is no basis for the defendant’s request that he be given the extraordinary authority to discuss classified information at his residence, and it is particularly striking that he seeks permission to do so in the very location at which he is charged with willfully retaining the documents charged in this case,” prosecutors wrote in a new motion proposing a protective order for handling secret documents during the case under the federal Classified Information Procedures Act (CIPA).
“Defendant Trump’s counsel objects to the provisions in the proposed protective order that require them to discuss classified information with their client only within a SCIF,” the government said. “They expressed concerns regarding the inconvenience posed by this limitation and requested that Defendant Trump be permitted to discuss classified information with his counsel in his office at Mar-a-Lago, and possibly Bedminster.”
“The government is not aware of any case in which a defendant has been permitted to discuss classified information in a private residence, and such exceptional treatment would not be consistent with the law,” the prosecutors added.
Last month, prosecutors advised U.S. District Judge Aileen Cannon in writing that the case’s sensitive papers were being moved to an existing SCIF in a downtown Miami federal courthouse. Cannon presides in Fort Pierce, which is at the northern end of the Southern District of Florida. The judge has set a trial date for May 24, 2024.
In a previous filing, the government indicated it would seek to curb Trump’s access to classified papers. But in Thursday’s filing, prosecutors said they would no longer seek that measure.
Prosecutors, though, drew a red line at allowing discussions to take place at Mar-a-Lago, the very location where Trump is alleged to have hoarded and hidden the documents in question. He is also alleged to have shown sensitive papers to unauthorized visitors at his New Jersey summer home.
Both Trump and co-defendant Waltine Nauta have pleaded not guilty to the charges in an indictment that now exceeds 40 counts. De Oliveira is scheduled to be arraigned in Miami on Monday.
The government also told the court in its Thursday filing that Nauta, an aide who is accused of helping Trump to move documents out of the reach of federal authorities, wants access to the documents as well.
“Classified information may only lawfully be provided to individuals who have a ‘need to know’ the information,” the prosecutors said, and Nauta is not one of those people.
“Defendant Nauta is charged only with obstruction and false statement offenses related to the movement and concealment of Defendant Trump’s boxes,” the government said. “The contents of the classified documents contained in the boxes, and the national defense information that they contain, are not material to proving or defending against those charges.”
In addition, Nauta’s lawyers “will have the opportunity to review the classified discovery, and should they see a need to share any particular classified documents” with their client, they “will have an opportunity to raise the issue with the Government and the Court.”
A non-starter, experts say
South Florida legal observers familiar with the handling of classified papers in federal criminal cases all doubted Judge Cannon would allow any dialogue about the papers to go beyond the four corners of a SCIF.
“I’m positive you cannot discuss the documents outside the SCIF,” said Miami criminal defense lawyer Kenneth Swartz, who defended a client in the Jose Padilla terrorist support case in 2008, and represents a co-defendant in an ongoing case against alleged players in the 2021 assassination of Haitian President Jovenel Moise. “I am sure her order would say that, because otherwise, what’s the point?”
“Your notes have to stay in the SCIF — handwritten notes, typewritten notes, whatever they are,’ Swartz added.
Richard Serafini, a Fort Lauderdale criminal defense lawyer who served with the Justice Department in Washington, agreed that the judge is unlikely to expand the realm of where the papers can be discussed and handled.
“Never say never, but it certainly sounds like it is probably never,” he said. “Both executive orders and CIPA set things out with how documents are supposed to be handled so they remain confidential and are not disseminated to people who should not be seeing them.”
Robert Jarvis, a professor of law at Nova Southeastern University in Davie, suggested that the system for reviewing documents poses not only inconveniences for the defense, but for the public.
Wherever he goes, Jarvis said, Trump attracts attention and is bound to draw crowds, tying up traffic and “inconveniencing thousands of people.”
“He is entitled to go over the documents with his lawyers,” Jarvis said. ”You can see the inconvenience not just to Trump but everybody else if he has to come into Miami. What a zoo.”
As an alternative, perhaps Trump could pay for the building of a more conveniently located SCIF.
“Let him build and pay for a SCIF wherever he finds it convenient, just like when you have very rich defendants who do not want to sit in jail while they are waiting for trial,” Jarvis said..
The defendants foot the bill for security, 24/7, he added. “That would solve all of these problems.”