Donald Trump arrested: Five things to know for Tuesday’s classified documents court hearing
Kaelan Deese
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Attorneys for the government and former President Donald Trump will appear in federal court on Tuesday afternoon over how to proceed on the handling of classified documents and whether the former president will stand trial before the 2024 presidential election.
Classified materials that were seized from Trump’s Florida resort home will be making the return trip to South Florida, where they will be placed in a special room at the downtown Miami courthouse for inspection by prosecutors and defense attorneys with proper security authorization.
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The hearing before U.S. District Judge Aileen Cannon, who will make her courtroom debut since Trump’s June arraignment before a magistrate judge, marks the first step in what will be a mostly closed-door dispute under a law that regulates the use of secret evidence at public trials known as the Classified Information Procedures Act, or CIPA.
Reporters and members of the public will be allowed during the Tuesday afternoon hearing, though attendees are barred from carrying any electronic devices.
Trump, who is seeking another shot at the Oval Office, remains the front-runner for the Republican nomination. Last month, he and his aide, Walt Nauta, were charged in a 38-count indictment that accused the former president of improperly retaining classified documents at his Florida residence and asking Nauta to shield some of the materials secretly despite government demands for their return.
Cannon instructed both parties in the case on Monday to be prepared to discuss their disputes on when the trial should begin, indicating that a trial scheduling order could be imminent. Trump is seeking to delay the trial until after the election against the government’s request to begin in early December, while Cannon has set a tentative trial date for early August.
Trump is facing 31 counts of violating the Espionage Act, which criminalizes mishandling of national security secrets. For special counsel Jack Smith’s team to prove that Trump violated the charged provision of the act, it must show that he held unauthorized information “relating to national defense” that could damage the United States or aid a foreign adversary and that he failed to return it to the government upon departure from his post.
Here is what to know ahead of the expected hearing at 2 p.m. Eastern time in Fort Pierce, Florida.
What is a CIPA hearing?
CIPA is a federal law governing procedures for criminal cases involving classified materials. It is most commonly used in cases involving the Espionage Act along with terror cases.
“If Mr. Trump and Mr. Nauta’s lawyers are able to persuade the court there is classified information that is critical and material to their clients’ defense, and that outweighs the government’s objections, they can put the government in the unenviable position of having to dismiss portions of the indictment in order to preempt the need for the information,” national security lawyer Bradley P. Moss told the Washington Examiner.
CIPA allows a court to shield or create substitutions for classified evidence under the circumstances.
Prosecutors could use the law to limit evidence they turn over to the defense in the discovery portion, and the defense would need to inform the judge and prosecutors before the trial which classified evidence they plan to introduce to make a case that it would be material to their argument.
Cannon, for instance, could block the evidence from use or permit the government to redact certain parts or allow a substitution that provides a general understanding, so long as it doesn’t prevent Trump’s right to a fair trial.
Likewise, a defense attorney could object to proposed changes and argue that the full details are necessary. The prosecution could then appeal Cannon’s decisions ahead of trial, and the defense would need to wait until a possible post-conviction appeal.
Does the defense have security clearance?
A government filing on July 13 indicated just two defense lawyers had applied for interim security clearances, meaning that such clearance would allow them to see “the large majority of the classified records from Mar-a-Lago.”
The filing then indicated that the classified documents would be kept in a so-called sensitive compartmented information facility, or SCIF, that is maintained at the federal courthouse in Miami. The eventual trial with Trump is expected to be held in the Fort Pierce courtroom, about two hours north.
Two of Trump’s attorneys, Chris Kise of the law firm Continental and Todd Blanche of New York, said in court filings that they took the necessary steps to obtain their clearances.
What is the jury allowed to see?
Prosecutors will need to compile evidence to show a jury how Trump allegedly endangered national security by his possession and handling of classified records he took back to Mar-a-Lago.
Each juror will likely need to see some portions of each of the 31 files singled out in the indictment to determine whether it meets the standard to convict under the Espionage Act. The defense could also request the government to hand over related classified evidence during the discovery phase for later use during the trial.
Lawyers for Trump wrote in a July filing indicating they would be forceful in attempting to make a large portion of the sensitive evidence in the case public information.
“In general, the defendants believe there should simply be no ‘secret’ evidence, nor any facts concealed from public view relative to the prosecution of a leading presidential candidate by his political opponent,” Trump’s lawyers wrote. “Our democracy demands no less than full transparency.”
What is the “silent witness” rule?
The so-called “silent witness” rule applies when the government might seek to show a summary of the classified contents in one of 31 documents at issue, rather than showing the official records.
“The silent witness rule is a term of art meant to describe alternative arrangements the court can authorize if requested by the government,” Moss said. The rule can also limit the publication of the classified document to only the defense and the jury while making it inaccessible to the public.
Moss also said certain witnesses may be allowed to testify in a sealed proceeding “with their image and voice modified.”
Government lawyers wrote in a July 13 filing they plan to “produce a small number of witness statements and memorialization of those statements that contain classified information.”
Looming protective order decision
In a Monday filing, attorneys for the special counsel included a proposed protective order for classified information ahead of the CIPA hearing, citing a lack of response from Trump’s attorneys since July 14.
In the proposed request, the language of the government’s filing indicated the Justice Department wants some materials given to Trump’s lawyers to be off-limits to the former president, a request that could prompt Trump to challenge and thereby cause further delay.
Since the judge’s entry of a protective order “is necessary to provide any classified discovery to the Defendants,” the prosecutors said, they asked Cannon “to require the Defendants to file an expedited schedule on any objections to the proposed protective order.”
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Moss said Trump’s counsel is permitted to seek delay even of long-established CIPA procedures and precedents “as long as they can demonstrate a good faith basis for their argument,” adding, “They are not required to just roll over for the government, after all.”
“For the Trump team, it is not about the amount of documents but rather the delays associated with fighting over the procedures that matters most,” Moss added.