Hi everyone,
Not a national security lawyer, but….
In the past, in cases where a person in possession of national security secrets was charged with a crime (let’s say espionage), they would sometimes use a clever technique to avoid prosecution known as “graymail.” Basically, they would threaten the government with the release of classified information as evidence during trial, presenting the government with the options of either risking the release of such information or letting the offender go without prosecution. The “disclose or dismiss” dilemma.
In 1980, Congress passed the Confidential Information Procedures Act (“CIPA”) to combat this. CIPA provides the court with procedures to combat the release of confidential information during trial, including the following: “The court, upon a sufficient showing, may authorize the United States to delete specified items of classified information from documents to be made available to the defendant through discovery under the Federal Rules of Criminal Procedure, to substitute a summary of the information for such classified documents, or to substitute a statement admitting relevant facts that the classified information would tend to prove.” 18a U.S.C. sec. 4. A defendant wanting to introduce classified documents is also required to alert the court in advance, and the court can deny the defendant the ability to present them in whole or in part.
The act gives wide discretion to the presiding judge, and seems to presume that the judge will actually care to keep the nation’s classified information secret. In pre-MAGA times, this was probably a reasonable assumption.
Of course, we don’t live in pre-MAGA times. On Monday, Judge Aileen Cannon issued a ruling that will essentially require the government to either: (1) turn over all documents to the jury to determine whether they constitute personal or presidential documents (hence illegal to retain under the PRA); or (2) accept TFG’s assertion that he is the sole authority as to what documents can be designated ‘personal’ or ‘presidential’ and neither a jury nor a court can review the decision. The espionage act (18 U.S.C. sec. 793(e)) is cited but not included in the analysis. So TFG maybe claims he declared (in his mind) some top secret document involving nuclear weapons a personal memento, and then the issue of the threat to national security becomes irrelevant? Basically, either a jury of people who will not have security clearances will see top secret documents or Trump walks. So Judge Cannon basically just handed the government the classic disclose or dismiss dilemma.
Graymail.
It’s not just for criminals anymore.
Hat tip to pigpaste for bringing the issue to DK.