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 June 20, 2023

Jury logistics threatening to bog down Trump's classified documents case

President Donald Trump's case over alleged mishandling of classified documents may hit a snag with required clearances to view the evidence, the New York Times reported. Moreover, the main claim about the nature of the secrets in the materials could be in jeopardy if the jury is allowed to view it. 

Trump is facing 31 counts outlined in a 49-page indictment hingeing on violations of the Espionage Act. The law, which originated during World War I, made it illegal to improperly handle secrets related to national security.

Prosecutors will have to prove that he unlawfully had possession of documents "relating to the national defense" for the U.S. or that could be used by an enemy power. In Trump's case, each count of the charge is related to documents seized at his private Mar-a-Lago residence.

The FBI raided his home last August and recovered a cache of materials. Included were 21 documents designated as "top secret," nine marked "secret," and one that outlined "military contingency planning" but had no destination.

For the government to prosecute the case, it will have to walk the fine line between keeping America's secrets safe and exposing what it believes to be incriminating evidence against the former president. Experts believe Trump's attorneys could leverage this fact to cut a plea deal.

Known as "graymailing," defense attorneys sometimes threaten to publicize classified information to get a quick settlement or dismissal from the government. If the government declassifies the information, then the case against the defendant falls apart since the secrets are not so secret anymore.

"It’s routine, if not invariable, that you’ll get a plea offer in a case in which the government says, ‘If we have to provide classified discovery to you, this offer is no longer on the table,’ and those can be very attractive plea offers," Joshua L. Dratel, a defense attorney who often handles terrorism cases and has security clearances, told the Times. "That’s because there is a tremendous tension between intelligence agencies and prosecutors that defense lawyers can exploit."

In 1980, the Classified Information Procedures Act was passed to close the graymail loophole. Most of these cases are treated to closed-door hearings to hash out how the information will be treated at trial before it can proceed.

"It is a very complicated, lengthy process," Barry Pollack, another defense attorney with security clearances, said. "Often, there are hearings not open to the public where the attorneys and the judge will literally go through documents line by line deciding which sentences and which individual words can be used in open court and which ones cannot."

Some of the remedies include redacting portions of documents or summarizing the information contained within. However, Southern District of Flordia Judge Aileen M. Cannon, who is the trial judge, would have to sign off on the use of CIPA to make sure Trump is getting the fair trial he's entitled to under the law.

An alternative to CIPA is the silent witness rule. In that case, the jury would be privy to the classified information while the rest of the courtroom would not be. Under CIPA, everyone gets to see the same evidence that has been redacted or summarized.

In the courtroom, this looks different as witnesses may refer to the information by where it appears in the document instead of stating the actual information. Jurors have a copy of the document and therefore are expected to follow along while the public is in the dark about its contents.

Since Trump's case hinges on the idea that what's contained in the secret documents must not be made public, prosecutors will have a difficult time trotting out the evidence against him. Of course, this trial is not really about the mishandling of classified documents but rather distracting and smearing Trump.

The left is afraid of another Trump victory and will do anything to stop him in his run against President Joe Biden. At the very least, they hope to bury him in legal battles indefinitely while the doddering old man in the White House seeks another undeserved term.

Written By:
Christine Favocci

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