Classified papers are U.S. property, judge says, as she sets rules for handling Trump Mar-a-Lago case documents

Any lingering doubts about who owns the classified documents at the center of the federal government’s case against former President Donald Trump appear to be dispelled after U.S. District Judge Aileen Cannon handed down her order on how secret papers should be handled before, during and after his trial.

“All classified documents and information to which the defense has access in this case are now and will remain the property of the United States,” she said in a protective order issued last week.

In addition, she made it clear that classified items identified by prosecutors from the office of special counsel Jack Smith can be viewed and discussed only under the strictest of conditions, in a secured room supervised by a Court Information Security Officer. Some of them, according to a government notice filed last Thursday, could contain matters related to national defense.

But in June, after Trump pleaded not guilty in Miami to charges of mishandling documents and obstructing investigators, he claimed he “had every right to have these documents” under the Presidential Records Act, a claim that legal experts dismissed as false.

In addition, he said he was in the process of negotiating with the National Archives and Records Administration the return of papers he took with him to his Mar-a-Lago estate when FBI agents raided his Palm Beach club and residence. He also claimed he had a “standing order” in place to declassify documents.

“Contract” with the government

But Cannon bypassed all of those claims in orders governing the documents for Trump and his two co-defendants for their forthcoming trial, which is scheduled for May 20, 2024. She did not mention the Presidential Records Act, made no mention of any negotiations,  and made clear the classified papers in question are government property.

She said the defendants “may have a continuing contractual obligation to the government not to disclose to any unauthorized person classified information known to them or in their possession. The government is entitled to enforce that agreement to maintain the confidentiality of classified information.”

Cannon issued her order after weeks of exchanges between the defense and prosecution over how both sides should handle the classified items that are pivotal to the government’s indictment against Trump and the two co-defendants, personal valet Waltine Nata and Mar-a-Lago property manager Carlos De Oliveira.

All three have pleaded not guilty in a case that now alleges some 40 violations of federal law.

This past week, the judge conducted a closed court hearing to discuss the document-handling process with lawyers from both sides.

Since 1980, federal criminal cases involving classified government documents have been steered by the Classified Information Procedures Act. In general, the aim is to prevent defendants from committing “graymail,” which a tactic designed to force the government to drop a case in exchange for not revealing government secrets.

Cannon’s 16-page ruling gives no quarter to those who spill the contents of secret government documents after agreeing to keep those documents a secret.

“Any unauthorized disclosure or mishandling of classified information may constitute violations of federal criminal law,” she wrote. “In addition, any violation of the terms of this Order shall be brought immediately to the attention of the Court and may result in a charge of contempt of Court and possible referral for criminal prosecution.”

Her order, which was requested by the government, gives little leeway to the defense when it comes to the time, location and conditions under which papers may be reviewed and discussed between defense lawyers and their clients.

In short, nothing can be done without clearances from a neutral Court Information Security Officer whose task it is to manage the handling of the documents and to supervise the people who are handling them.

A government SCIF, not Mar-a-Lago

Trump, Nauta, DeOliveira and their legal teams must use a secure compartmented information facility, or SCIF, to review classified evidence. And in the cases of the latter two, access is more limited than Trump’s.

At one point this summer, the former president had his lawyers request permission “to re-establish” a similar facility he used in or around his Palm Beach estate when he was president.

Before Cannon issued her order, the government insisted the proposal was out of the question.

“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 motion proposing its protective order.

“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.

In her order, the judge did leave the door slightly ajar for a request to be made through the security officer who is in charge of overseeing the documents and their viewing.

“Any classified information the defense discusses with the Defendant in any way shall be handled in accordance with this Order, including such requirements as confining all discussions, documents, and materials to an accredited SCIF or other location authorized by the CISO,” she wrote, referring to the Court Information Security Officer.

David Weinstein, a private Miami attorney for the firm Jones Walker and a former Southern District of Florida federal prosecutor, said he doubted the judge would allow any classified document viewings in the very place from which federal agents had to retrieve them.

“I can’t see how in the world she would approve him looking at the documents where they were unlawfully kept,” he told the South Florida Sun Sentinel.

Earlier this summer, the government advised the court that the sensitive case documents were being transferred to a secure facility in the C. Clyde Atkins Federal Courthouse in downtown Miami.

“It has to be a big enough room where the government can have an area and the defense can have an area,” said Weinstein, who once supervised a weapons case that had classified evidence. “They have to designate space in there for the defense.”

It is unknown whether the court has any plans to authorize the construction of a SCIF in Fort Pierce, where the trial is scheduled to take place next May some 125 miles north of Miami, and about 70 miles north of Trump’s Mar-a-Lago residence.

The distance, while inconvenient, “is not insurmountable,” Weinstein said.

Security clearances, sealed filings

All lawyers on both sides require security clearances, and they appear to have them.

The government now has eight lawyers on the case, with two more added  last week, according to court filings.

The court has been advised that defense lawyers from both in and outside of Florida have at least interim clearances so they can view documents. But they can’t discuss them or disclose any of their contents to unauthorized people in the outside world.

“The defense and the Defendant shall not disclose classified information to any person, except to the Court, government personnel who hold appropriate security clearances and have been determined to have a need-to-know that information, and those specifically authorized to access that information pursuant to this Order,” Cannon wrote.

Lawyers for the defense may disclose classified information to Trump unless the government informs the defense that it will ask the court for an order to bar information from being disclosed to their client. In that instance, the defense lawyers won’t be able to share the information without a court order and without a notification that the government no longer intends to block it.

It’s up to the court security officer to establish procedures to ensure the SCIF is accessible during business hours to the defense, and at other times in consultation with the Court and U.S. Marshals Service.

“No classified documents, material, recordings, or other information may be removed from the SCIF unless so authorized by the CISO,” the order says.

The officer is also bound to honor attorney-client privilege, maintaining the privacy of defense conversations if he or she should overhear them. The same applies to any work papers the officer might see being handled by the defense.

Motions to the court containing classified information must be filed under seal.

The government on Wednesday produced classified discovery for the first time, some of which may be viewed by counsel with interim clearances, and some of which requires counsel to have final clearances with additional necessary read-ins. The material includes classified documents that had been stored at Mar-a-Lago as well as other classified material generated or obtained in the investigation, including documents related to witness interviews.

When the case is over, there won’t be any classified-related memorabilia available for public consumption.

“The notes, summaries, and other documents prepared by the defense that do or may contain classified information shall remain at all times in the custody of the CISO for the duration of the case,” Cannon wrote in the order.

“At the conclusion of this case, including any appeals or ancillary proceedings thereto, all such notes, summaries, and other documents are to be destroyed by the CISO in the presence of counsel for the Defendant if they choose to be present.”