The Legal Dynamics of Trump’s Second Indictment on Seven Criminal Charges

From a New Yorker Q and A by Isaac Chotiner headlined “The Legal Dynamics of Trump’s Second Indictment”:

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 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.

Would it go to what sort of penalty you might seek as a prosecutor, if in one case a defendant is selling information to a foreign power, and in another the defendant just has a big ego and wants to keep it?

Maybe, but that is more a political decision than a legal one. One of the endemic features and bugs of the Espionage Act is that it treats those things the same. Whether to charge cases differently or seek different sentences is at the discretion of the prosecutor.

Do we know anything about the way prosecutors normally approach these questions? Does that discretion often manifest in seeking different sentences based on motive?

Yes. I think it is safe to say that the history of Espionage Act prosecutions is not as voluminous as those of other, more frequently used federal criminal statutes. But, yes: we see differences in prosecuting leakers versus classic spies, where the charges may be the same but the sentencing recommendations are different, or you see a difference in the government seeking consecutive versus concurrent sentences. But the other part of that story is that, in a lot of those cases, the government’s charging decisions are intended to create leverage in plea negotiations. The government will go for the jugular, not necessarily because that is what it wants to prove at trial, but to incentivize the defendant into coöperating. I am not sure how realistic that is here.

Yeah, I don’t think—

Right. Right.

When it comes to a conspiracy to obstruct justice, again, how much does the purpose of retaining the documents matter?

Now we get into more of an intent requirement. Proving that kind of charge does require showing a bit more that this wasn’t just holding on for ego, or keeping these documents because you can. We don’t know what the indictment says, but if the conspiracy charge is not based on the initial retention but instead on statements that were made once the documents were requested, then the intent might not matter that much. “I want to keep these documents” could explain why he initially had them; it doesn’t explain why he would lie to the government about still having them.

Why not?

It’s one thing to take these documents and make a good-faith mistake that you were entitled to possess them. Once the government comes along and says they want them back, the defense that you just wanted to hold on to them doesn’t actually respond to the charge that you were obstructing the government’s investigation. The lie is the obstruction.

That’s interesting. I thought you were saying that, if the obstruction was also because you have a big ego, that would be looked at differently than obstructing justice because you wanted to sell the documents, for instance. Does the motive for obstruction matter?

Not to prove the charge, but perhaps for the broader atmospherics, and what might happen if we ever get to sentencing. But the obstruction is complete once he hinders the government, even if he thinks he had good reason for doing so.

There have been claims from Trump that he had the power to declassify documents, even by “thinking about it.” How important is this, and how important is his state of mind?

The Espionage Act charge means he would have to know it was information related to the national defense that could be used to the benefit of a foreign party or the harm of the United States. The defense could try to argue that, if the information had properly been declassified, then there would be no way that Trump’s retention of it could have benefited a foreign power or harmed the United States. I will just say that that argument has failed in prior Espionage Act prosecutions. The courts have rejected arguments that information was out in the public domain, and that therefore it didn’t matter that the defendant leaked it. This goes back to the capaciousness of the Espionage Act.

There has been reporting about audio of Trump acknowledging he held on to a document that was classified, and that it indicates something about his state of mind. Why is that important?

Not his state of mind—his knowledge. Under the Espionage Act, the whole ballgame is knowledge. And, if the government can prove knowledge without having to put him on the stand, and use documentary evidence that Trump knew this was information related to the national defense, then that jumps over a pretty important part of the trial. Again, at least in the context of the Espionage Act, the question is how the government establishes what Trump knew.

Looking generally at the way the government deals with classified documents, how serious do you expect this all to be?

Perhaps there are other things that make this case different, but based on what is already in the public domain, what makes it serious in the universe of Espionage Act prosecutions is exactly what happened when the government went to Trump and said, “We still think you have these documents.” There are examples of officials and former officials who negligently remained in possession of such materials, and the second they are approached, they return them. And those cases don’t get charged, or they are charged as a misdemeanor.

What do you make of the decision to file the charges in Miami, where we would assume the jury pool would be more pro-Trump than it would be in Washington, D.C.?

I think it avoids a fight over venue. Trump would have had an argument that any prosecution should occur where the alleged mishandling occurred. To the extent that this is about what he did in Mar-a-Lago, and not in the White House, he would have pretty good arguments that Florida is appropriate as a venue.

The other thing is that the venue rules are district-specific and not division-specific, so by filing in Miami the government is making a good effort to have it tried there rather than Palm Beach. If they had started in D.C., they might have lost control over where in the Southern District of Florida the case ended up.

You are assuming Miami is less pro-Trump than Palm Beach?

Or at least the government might reasonably think that.

This case is going to have severe timing issues. The Trump people will want to drag it out to put off any punishment and because they hope he can be President again before any punishment comes. And the government may want this to wrap up before the campaign heats up. I have heard people say that federal prosecutions are harder to delay. Is that accurate?

Yes, federal prosecutions are harder to delay. The federal rules are a little more pro-government when it comes to the timing of proceedings than is true in most state courts. But there are two wild cards. The first is the judge. The judge still has a fair amount of say over the scheduling and calendaring of pretrial matters. Wild card No. 2 is how complex the pretrial proceedings are. And, again, that is something the government will have a fair amount of control over based on how it chooses to charge the case. Are the charges going to invite a ton of pretrial wrangling over expert witnesses and cipa and the spectre of graymail? If you are the government and timing is a priority to you, that too will shape some of your decision-making to try to reduce the possibility of time-consuming, contentious pretrial fights. ♦

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