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On Thursday, former President Donald Trump announced that the Justice Department was indicting him on seven criminal charges in an investigation surrounding classified documents found at his Florida home at Mar-a-Lago. Although we do not yet know the precise nature of the charges, the Times has reported that they include willfully retaining classified information, in violation of the Espionage Act; making false statements; and conspiring to obstruct justice. Trump is expected to appear on Tuesday at a federal courthouse in Miami, where the charges were filed.
To talk about how the government approaches cases involving classified documents and violations of the Espionage Act, I spoke by phone with Stephen Vladeck, an expert on national-security law and federal courts who teaches at the University of Texas School of Law. He is also the author of the new book “The Shadow Docket.” During our conversation, which has been edited for length and clarity, we discussed the challenges facing classified-document prosecutions, whether the reason Trump held on to the documents matters, and the coming fight over how long a potential trial might last.
What are the considerations when the government approaches cases involving classified documents?
There are a slew of them. From the government’s perspective, the crux of the matter is how much classified information they are willing to reveal, because the defendant has a constitutional right to confront the evidence against him. This means that the government cannot split the difference; it can’t convict someone based on evidence they are not allowed to see. So oftentimes how the government charges a case like this and how they try a case like this reflect decisions about what they are and aren’t willing to disclose.
And there is no way to try a case in a format where the defendant is presented with evidence and the court is essentially sequestered in some way?
There is one thing. It is called the silent-witness rule. Under this rule, the government can put a witness on the stand, and have the witness refer to line numbers of documents, and point to different parts of documents, where the government and the defendant and the jury and the judge all have the document, but the public doesn’t. The problem is that part of that includes the defendant, and part of that includes disclosing information to the defense. So it’s not necessarily about what the government is willing to make public; it is about what the government is willing to provide the defendant.
But, in a case like this, presumably the defendant already had access to a lot of the classified information. This is what the defendant is often charged with in the first place.
So that brings us to the second consideration, which is the spectre of what is called graymail. Graymail is the concern that because the defendant had access to and is aware of classified information, the defendant might attempt to use that understanding or information or access as part of his constitutionally guaranteed defense in a way that could lead to public disclosure.
Can you give an example of how that might happen?
Suppose you are trying a former government employee for leaking national-security secrets. The defendant might say, “I want to testify about why I leaked this information, and other things I saw that led me to leak this information.” And so CIPA—the Classified Information Procedures Act—exists largely to protect the government from graymail. What it does is create special rules and special procedures for when the defendant wishes to use classified information as part of his defense.
What are those rules? How do they function?
The rules involve first providing notice to the government and the court, as opposed to the typical criminal case, where the defendant is allowed to raise a defense on the spot. There are notice requirements under CIPA if a defense is going to be raised in whole or in part on classified information in the defendant’s possession. Then there are rules about what the court is supposed to do. Is it possible, for example, to use redacted summaries?
So, on the Confrontation Clause side of the story, we are talking about pressure on the government to not even use certain material in the prosecution at all. On the CIPA side of the story, we are talking about limits on how the defense is allowed to use classified information. And so these trials tend to unfold at the intersection of these two countervailing forces.
Given that these dynamics seem complicated, are you suggesting that sometimes the government will bring charges where they don’t have to get into all this stuff? Will they, in essence, bring more basic charges?
Yes, exactly. The government’s concern about what the Confrontation Clause would trigger could lead—and has led in the past—to changes in what the government charges, to changes in the evidence it relies upon to prove its case, and to changes to the witness list, because the government may not want to burn a source or an informant. There are a series of strategic and tactical considerations by government lawyers about the costs of each decision.
Assuming that the reporting is accurate here and there is a willful-retention charge, one other piece of this that might make the government’s job somewhat easier is that willful retention doesn’t require proof of anything other than that Trump knew that this was information related to the national defense, and that after a request was made to return it he deliberately did not comply with that request. That does not open itself up to a whole lot of fighting over national-security secrets. The mere fact that a document might have a top-secret stamp on it might be enough—and in other cases has been enough—to demonstrate that the person knew it was information related to the national defense.
How much does the purpose of keeping the documents matter? Would that go to what sort of charges or what severity of charges the prosecution would seek? You could imagine, in a theoretical case, let’s say, a motive ranging from selling the documents for money to wanting to keep them because you have a big ego, and people telling you to give them back means you just want to keep them more.
This is, to me, one of the deeply problematic things about the Espionage Act, which is that motive is irrelevant. And in prior cases where the conversation has been about using the Espionage Act to go after national-security leakers whose motives might have been in service of the public interest, that doesn’t matter to establishing a violation of the Espionage Act. It’s a knowledge requirement, not an intent requirement. I don’t doubt that, if the case gets this far, President Trump will try to make some argument about why he retained these documents, maybe if nothing else as an attempt to sway the jurors. But establishing a violation of that statute usually doesn’t require establishing anything about the defendant’s motive.
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