An essential provision of a protective order is the appointment by the court of a Court Security Officer (CSO). The CSO is an employee of the Department’s Justice Management Division; however, the court’s appointment of a CSO makes that person an officer of the court. In that capacity, the CSO is responsible for assisting both parties and the court staff in obtaining security clearances (not required for the judge); in the proper handling and storage of classified information, and in operating the special communication equipment that must be used in dealing with classified information.
Does Trump have a lawyer now who has been given clearance? I’m pretty sure the answer is no. I have my doubts that happens quickly. Issues like this will delay this trial and others again and again.
Right, but your original point doesn’t stand. The talking head you heard was making the argument that Trump would have to find a lawyer willing to represent him who already has the clearance. That does not appear to be true.
I’m not arguing that he needs a lawyer who currently has clearance, but such clearance has to be provided with sufficient time to prepare for trial, and that could take years under normal circumstances. Even with a special procedure I’m sure it will take some time, and not just any lawyer will qualify.
And to be absolutely clear, I hope Jack Smith works his way through these issues and finds a way to proceed quickly on this. It is only the threat of his political actions that provides any uncertainty here. It would be a slam dunk against anyone else.
No, I’d expect them to take word of a computer security expert. The lawyer doesn’t know jack shit about computer security and, if you’re relying on his word about a hacking crime, then you’re an idiot because that guy’s a lawyer not an IT professional.
I can imagine cases where it would be useful for a lawyer to know the content of classified documents - if those documents were, for example, reports on the activities of a soldier who was being charged. This isn’t that sort of case.
The lawyer’s job is to know the law, not to be an expert in document verification. In this case, it should be sufficient to pick a person with clearance that the defendant trusts, to go look at the documents, and say whether they contain meaningful national secrets or not.
No, I wouldn’t. Not a lawyer, but I’m familiar with the maxim that says an attorney should never ask a question he doesn’t already know the answer to. If we stipulate that every sane attorney involved knows damn well that the classifications asserted are accurate, why in the world would a defense attorney pose some form of the question, “Hey, how do we even know all this stuff is classified or related to national security? For all we know this stuff is a bunch of magazines.”
As noted, the government has lots of experience dealing with criminal charges related to classified info, and I have no doubt they’d be able to provide the well-supported response to the prior question, leaving a jury shaking their heads over a flailing defense.
Shorter answer: Sure you want to introduce any degree of doubt you can. This approach does just the opposite.
Also keep in mind that the actual classified material itself may only be summarized. As a quick and simple example, imagine there is a classified document containing “nuclear code ht8r46-goyfs5-e5hjtsd-1h6g.” At trial, it’s pretty likely that that classified document would be entered into evidence as “document containing valid nuclear code.”
Nobody needs to know the actual code, or even the format of the code. They only need to know that it is a code. A court appointed security officer would affirm that that is the case. The jury doesn’t need security clearance for nuclear codes to hear the case, and the lawyers don’t need clearance to argue the case. If a lawyer did try to argue “But is that really a valid nuclear code? How do we know?” they’d be laughed out of court.
So no, I don’t think a defense lawyer would try and dispute whether or not the documents were actually classified.
Someone please correct me if I’m off base — wouldn’t be the first time — but more than once I’ve heard the punditerati assert that for the first 31 counts the classification of the documents, while not exactly irrelevant, is secondary to their nature. That is, if they have to do with national defense (and I would presume that to be the case with any document dealing with nuclear capabilities), Trump is in violation of the Espionage Act by retaining them whether or not he used his Very Good Brain™ to declassify them. Could someone more knowledgeable comment or clarify (or debunk)?
Wouldn’t the documents have some sort of document number on them?
I would think that there is a record saying this is Top Secret, this is Classified, this is defense information etc. Why would anyone have to read them for this trial to go forward.
Now of course, those with proper clearance are going to need to see them. If for no other reason than to get a handle on what may have been leaked.
National defense information in general is protected by the Espionage Act,21 18 U.S.C. §§ 793–798, while other types of relevant information are covered elsewhere. Some provisions apply only to government employees or others who have authorized access to sensitive government information, but the following provisions apply to all persons. 18 U.S.C. § 793 prohibits the gathering, transmitting, or receipt of defense information with the intent or reason to believe the information will be used against the United States or to the benefit of a foreign nation. Violators are subject to a fine or up to 10 years imprisonment, or both, as are those who conspire to violate the statute. Persons who possess defense information that they have reason to know could be used to harm the national security, whether the access is authorized or unauthorized, and who disclose that information to any person not entitled to receive it, or who fail to surrender the information to an officer of the United States, are subject to the same penalty. Although it is not necessary that the information be classified by a government agency, the courts seem to give deference to the executive determination of what constitutes “defense information.” Information that is made available by the government to the public is not covered under the prohibition, however, because public availability of such information negates the bad-faith intent requirement. On the other hand, classified documents remain within the ambit of the statute even if information contained therein is made public by an unauthorized leak.
Maybe there’s some case law that narrows down what is and isn’t covered by this. I know, for example, that Fogbank was an atomic secret - so secret that we forgot how to make it. But likewise, I can go to the Internet and look up which countries have nuclear weapons and which ones don’t, and none of the websites who are publishing that data are in any imminent threat of being hauled in to the slammer.
My sense would be that a document with the location of US nuclear missile silos would fall under the “immutably secret” heading. Whether a map of believed Iranian nuclear test sites would be, I couldn’t say.
Whether it would be criminal to show a document on the production of Fogbank to Kid Rock, I also couldn’t say. He’s not a foreign national and there’s no reason to think that Kid Rock would do anything to harm the USA. But it’s also a clear and obvious act of malignant negligence to do so.
And, here’s the (relevant part of the) Espionage Act:
Now, again, this shouldn’t necessarily be read at face value. I can go to the Internet and look up a list of US military bases and their locations. There is a parameter on what falls under the act and what doesn’t.
As practiced until now, as I understand it, anything declassified or leaked to the press is considered exempt from this law, post-publication. A journalist, releasing information that was given to him by a whistleblower is protected. A Wikipedia editor, taking the information from the news and putting it into her encyclopedia entry, is protected.
However, the person who leaked the information - if tracked down - can still be prosecuted for the leak.
But, likewise, a President, in office, can declassify anything (that’s not a nuclear secret). He can go on TV and admit that we’ve got a mole in the North Korean government (if we did), and that would be completely above board. Again, that’s while he is still in office.
If Trump did, indeed, declassify the documents in his last moments of still being the President then there would be a defense. But we would need more than his word for that - and especially when we have witnesses who say that he told them that he couldn’t, legally, show them his documents because they were still secret.
There have been a dozen prosecutions for mishandling classified documents since 2005.
Lots of different types of cases.
Cases do take a long time from start to finish, which is why the DoJ is trying to hurry this one through before the election. I see nothing in previous cases that involve shenanigans about what a classified document is or who can look at what. There are procedures in place that already give judges guidance.
Trump might try stalling. The lawyers might get creative. The judge may be derelict in her duty. Anything is possible. But the indictment already lays out the classified nature of the documents with their precise classifications. (I presume that those who need to know will be given the publicly redacted information.) Any lawyer willing to defend Trump will know all this. The documents themselves are mere tokens at this point.
This is criminal court. It’s not a rocket docket. A year is about the length for any case to go to trial.
Civil cases, meanwhile, sometimes do languish for years. That’s why the concept of a “rocket docket” makes sense in that context.
(The only real exception I can think of for this criminal case would be if this trial was postponed so as to not coincide with the New York trial, but I don’t think either will overlap).
Correct, the citation uses a count of civil cases in its statistics about the speed of movement of cases in that federal district (in comparison with others).
Yet over 95,000 citations for “Trump” and “rocket docket” are available to you to show you that the Southern District of Florida DOES have a reputation for speedy movement of criminal cases, too.