On Friday, June 9, a federal court in Florida unsealed an indictment charging former President Donald Trump with willfully retaining national defense information, refusing to return it, and obstructing related investigations. The 38 counts allege that Trump violated the Espionage Act, conspired to obstruct justice, withheld and hid documents, and caused false statements to be made to federal investigators and a grand jury.
Espionage Act cases are complex and important. They often require prosecutors to balance the need to protect sensitive intelligence information from being disclosed at trial with a defendant’s constitutional and due process rights not to be convicted by secret evidence. And disclosure of classified information can expose critical sources and methods of intelligence, including human sources, to harm.
Joining us to explain how Espionage Act prosecutions work, and what to expect in Trump’s case, is David Aaron.
David is a Senior Counsel at the Washington, D.C., and New York offices of the law firm Perkins Coie. Before joining private practice, David was a prosecutor with the Justice Department’s National Security Division. He’s prosecuted Espionage Act violations and has seen how the process works from the inside.
Show Notes:
On Friday, June 9, a federal court in Florida unsealed an indictment charging former President Donald Trump with willfully retaining national defense information, refusing to return it, and obstructing related investigations. The 38 counts allege that Trump violated the Espionage Act, conspired to obstruct justice, withheld and hid documents, and caused false statements to be made to federal investigators and a grand jury.
Espionage Act cases are complex and important. They often require prosecutors to balance the need to protect sensitive intelligence information from being disclosed at trial with a defendant’s constitutional and due process rights not to be convicted by secret evidence. And disclosure of classified information can expose critical sources and methods of intelligence, including human sources, to harm.
Joining us to explain how Espionage Act prosecutions work, and what to expect in Trump’s case, is David Aaron.
David is a Senior Counsel at the Washington, D.C., and New York offices of the law firm Perkins Coie. Before joining private practice, David was a prosecutor with the Justice Department’s National Security Division. He’s prosecuted Espionage Act violations and has seen how the process works from the inside.
Show Notes:
Paras Shah: Hello and welcome to the Just Security Podcast. I'm your host Paras Shah. Joining me to co-host this special episode is Just Security’s Co-Editor-in-Chief, Ryan Goodman.
Ryan Goodman: Great to be with you and looking forward to the conversation.
Paras: On Friday, June 9, a federal court in Florida unsealed an indictment charging former President Donald Trump with willfully retaining national defense information, refusing to return it, and obstructing related investigations. The 38 counts allege that Trump violated the Espionage Act, conspired to obstruct justice, withheld and hid documents and caused false statements to be made to federal investigators and a grand jury.
Espionage cases are complex and important. They often require prosecutors to balance the need to protect sensitive intelligence information from being disclosed with the defendant’s constitutional and due process rights not to be convicted by secret evidence. And, disclosure of classified information can expose critical sources and methods of intelligence, including human sources.
Joining us to explain how Espionage Act prosecutions work, and what to expect in Trump's case, is David Aaron. David is a Senior Counsel in the Washington D.C. and New York offices of the law firm Perkins Coie. Before joining private practice, David was a prosecutor with the Justice Department's National Security Division. He's prosecuted Espionage Act violations and seen how the process works from the inside.
Hey, David, thanks so much for joining the show, especially on short notice and in what's been a very busy news week. We now have an unsealed 38 count indictment of former President Trump for retaining national defense information. And you have prosecuted a number of these espionage cases in the past. So, I want to start by getting your sense of the indictment. Can you give us an overview of the charges?
David Aaron: Sure. And thank you for having me. It's good to be with you. You know, other than the fact that the defendant is a former president of the United States, there's a lot about this indictment, or at least the first section, that's fairly typical for an Espionage Act retention case. There is a description of what classified information is, there's a description of some of the agencies involved, and then it kind of walks through allegations regarding the the elements of section 793E, which is, you know, the the main statute at issue here — talking about National Defense Information, willfulness that the that the defendant evinced. And that part is fairly standard, it lays out, you know, the documents that will be charged. It looks like each individual document listed in the indictment will be its own unit of prosecution. So you have one document for one count.
What happens then, though, is it goes to this other part of the narrative, which is the cover up. The alleged cover up involving tampering with witnesses, tampering with evidence, and that is very interesting. Most defendants in these cases haven't had the heads up that this defendant had about the investigation. And so you don't often get to see the attempted cover up in one of these cases. Those charges are significant and serious on their own. But, another feature of those charges, is that they are evidence of willfulness. Of the defendant’s consciousness of guilt. And so if his own statements — and statements to his attorney — as recounted in the indictment, if those left any doubt at all, the act of concealment is essentially an admission that you know that what you've done is wrong. So that's a very interesting extra part of this indictment and featured prominently in that, is this attempt to use an attorney as an unwitting accomplice, essentially, in the cover up. And I think that's something that will be taken extremely seriously that is unique to this case in Espionage Act cases that I've heard of.
Ryan: So, David, when you look at an indictment like this, if you were thinking of it from the other side, as defense counsel, and you saw something like this, I mean, the way I see it is it's so extraordinary in terms of the evidence that they have, including all of these communications between the defendant and their attorney, and audio recordings of one of the most incriminating exchanges which is discussing one of the documents with four people trying to show them the document apparently. And all four people have no plausible, there's no plausible scenario in which they would have security clearances. So it seems so open and shut in a certain sense. Is this the kind of case? I don't want to leave you with the question, but it just seems to me this way: that if we were, with any other defendant, would just be expecting in a certain sense that they would know that they need to plead, that would be the best advice that their counsel could give them.
David: You're absolutely right. And in most cases, looking at this indictment, as a prosecutor or as an ex prosecutor who knows how these cases go, my expectation would absolutely be that this would be a process of educating the defense team and the defendant about how little hope there is. Trying to make that process as quick and painless as possible, but letting them do their job to fully understand the facts and the law, and then advise their client to plead guilty. And that's how a lot of these cases go.
We happen to have a defendant here who, by reputation, appears unlikely to plead guilty. And so, what's going to happen? There's many permutations of the lawyer joke about if you don't have the facts, attack the law. If you don't have the law, attack the facts. If you don't have either, go after the prosecutor. Here, at least in the media, what we've seen is attacks on the prosecutors. And, you know, those will be, those will continue, those will be offered to the judge. Probably motions will be made to the judge alleging all kinds of prosecutorial misconduct. And we can just hope that the judge handles those appropriately, especially if it gets to the point where the defense team is trying to make those arguments to a jury. But that's probably going to be one line of attack.
I think if I was going to identify a potential merits-based attack on these allegations, it's going to be a real long shot to try to argue that these documents were not national defense information. Hopefully, the question of whether or not they were declassified in some, you know, special way, hopefully that will be kept out as an issue. But willfulness, willfulness might be something for the defense to try to attack. Try to show that the defendant, the ex-president defendant, in this case, believed that he was entitled to do what he did. Now, can you do that without offering him up as a witness? That's going to be a tough one. So, it is, it is hard to see how you attack the merits of this case. So it'll, we'll have to see what procedural attacks and collateral attacks that the defense can bring over the course of this case.
Paras: One aspect of this case might be motions in limine, which are pretrial motions, and those could be made by either side to limit the amount of evidence or to limit certain arguments that can be made. So how do you expect that process to play out?
David: So when it comes to motions in limine in a case like this, honestly, I think it's going to be the government making most of them to try to reduce the role of smoke and mirrors in the case. Trying to preclude the defense from offering defense, defenses along the lines of some of the public statements that we've heard about declassification about entitlement to have these documents. I think it’s really going to be a question of can the prosecutors successfully narrow the case such that the defense will not be able to offer irrelevant information, unfounded theories, to try to confuse the issues and confuse the jury. Meanwhile, the defense is maybe going to, you know, try to map that as much as possible, map, map those arguments as much as possible to the actual elements. So questions about the President's authority to declassify or belief that he owned the information or that these were his documents, iif the defense doesn't offer those for the truth of those statements, but rather to show a belief by the defendant, that might be a way to get those arguments in but mapped to the mens rea, to the to the mindset element of the crime, as opposed to actually proving the truth of those. I do want to add, I don't know how strong those arguments are going to be. But if you have a defendant like this, who's going to take it all the way, you've got to do something.
Paras: Another element of this is the sensitivity of the documents themselves. The indictment does not provide copies of the documents. They're just referred to generally with descriptions, and there are federal procedures in place to allow a jury that doesn't have security clearances to understand the type of evidence that's presented in these cases. So how does that process work?
David: So, you're absolutely right, jurors do not receive a security clearance. And there are a few reasons why. Primary among them, if you clear jurors before a trial, where the government has to prove that there's national security information at issue, you're effectively biasing the jury. You're telling them in advance that this is so secret, that they need security clearances to even hear it. So, it would be, it would already be prejudicing the jury if you were to try to give them security clearances. So that's just one reason, among many.
So, you have this situation where prosecutors are relying on classified documents to prove their case. And in a counter-espionage case, or an Espionage Act case, those documents, the classified part of those documents, the sources and methods, the stuff that is the most sensitive, that is actually the crime like that. That is the material that constitutes the crime. So you can't summarize that for a jury. You need to show the jury that information so the jury can evaluate for itself whether these documents contain national defense information, which is not the same as classified. There's a lot of overlap between those two categories, but classification is a label that the executive branch applies. National defense information is a question of fact for the jury. So the jury has to get their hands on these documents, and has to hear, potentially, from witnesses, who will explain what it is that is so sensitive about those documents, why those documents have to do with national defense, and what use an adversary might be able to make of those documents if those documents were disclosed to an unauthorized recipient. All of that is going to be incredibly sensitive. And so, the prosecutors have to have a way to do all that without exposing all of this to the general public. And that's where the Classified Information Procedures Act comes into play. Among other things, it allows the government to seek from the trial judge in advance rulings about the admissibility of the classified information that each side wants to present, but also how that information will be protected at trial. Now, in some cases, you can deal with that by summarizing the information, substituting or redacting parts of the information, but here, I expect the government to do one of two things, or some combination. Some of this material may get declassified on the eve of trial. That would be the result of a calculated decision by the intelligence community and the prosecutors, that the harm that would result from disclosing the information was worth the benefit that would be gained from using it in a prosecution. So that's one option. And the other option is what's referred to as the silent witness rule, which is not technically part of CIPA, but is often considered in the CIPA process. And, that's a way for the court, the judge, the court staff, the defense, the defendant, the prosecutors, witness, and the jury to all see the classified document. But, for that document to be kept from public view. So, the jurors might all have a handout, that is a copy of a document with page and line numbers. And the witness might testify saying as you see on page three, line 12, and then in an oblique way referred to text on the page or a picture on the page that the jury can see, and you offer explanations about it that don't mean anything to the people in the audience or to the media because they can't see what's on that page. It can be a cumbersome process. It's been done in different ways. It has to be done in a way that lets the defendant do effective cross-examination of a witness. And a way that doesn't lead to jury confusion or distraction. So it's a tricky procedure. Judges don't always allow it. It is sometimes seen by some circuits as being akin to a courtroom closure, which is a fairly extreme and disfavored technique in American trials. But, that's what I would expect to see. That there's going to be silent witness rule for these really sensitive stuff. There may be, there might be, some declassification on the eve of trial, depending on the sensitivity of the information.
Ryan: So David, when the intelligence community makes the calculation that they're willing to risk some of this information being divulged at some level to the jury and to the public. And it's a trade off that they're willing to make in favor of the criminal trial accountability, and the like. They obviously hold some highly sensitive materials back, because they were just not willing to risk it. But here we see so many documents that seem to be highly sensitive, top secret. I think it’s — not I think — it is 21 out of the 31 counts involved top secret level classifications. Can we read anything into that? Is there any inferences that could be drawn about what the IC might be thinking? Everything from on one end of the spectrum, maybe this is information that was top secret at the time it was classified but it's degraded over time in terms of its value, to the other end of the spectrum, that it is top secret information and of such high value but the different parts of the IC that have authorized its use see extraordinarily high value in this trial.
David: So a lot of this information actually doesn't seem very old. And even old classified information is very hard to shake loose a lot of the time, for a wide variety of reasons. What's interesting about this, people may or may not have noticed, that even some of the SCI ticket information in the classification markings is redacted. So that tells you exactly how sensitive some of this may be. That even the three letter initial can't be revealed. You know, in most of these cases, it again, this is a unique case, but in a case involving the theft and retention or or disclosure of classified information, the intelligence community agency is a victim. And they have an interest in vindicating their right, vindicating themselves as a victim. Punishing the insider who betrayed their trust. That's what you see in most of these cases. And there is that tension. But if it's an egregious enough case, they'll recognize that the punitive value of the trial, and hopefully the deterrent value of the trial will be worth that. Now. This is a case like no other. I would imagine that there were a lot of discussions about whether this case would even happen. And once everyone in the room came or was brought to the conclusion that this case had to happen, then everyone had to get on board and say, “Okay, what do we need to do?” And that's it. I mean, you can't do these cases, unless everyone is going to have some skin in the game.
Paras: I'm curious from what you've seen in these espionage cases? Why do people retain classified information? And, I guess I'm wondering that both generally and as applied to Trump here.
David: So that's a fantastic question. And it's one, that as an investigator, as a prosecutor, if all you can show is retention, you really, you end up scratching your head a lot about why would someone do this. And a few things have shed light on that for me. I've had cases where US intelligence community employees or contractors who create things feel a real connection to what they created. And they want to take that with them. And I will tell you that when I left DOJ, there were briefs I wish I could take. There were exhibits I wished I could take. And when you devote a lot of your life and energy and time into working with and producing interesting and unique things, it's very hard to separate from those. For the record I did, completely. But, not everyone is able to do that.
I saw defendants who, for lack of a better way to say it, thought it was cool. Had a bit of a James Bond fixation or Jason Bourne fixation, and thought of themselves as International Men of Mystery and they liked surrounding themselves with classified information. I, again, it's in some ways understandable, but it's so obviously the wrong thing to do. The news reports and some of the allegations in the indictment suggest that that may have been what's going on here. It seemed like during his administration, the president enjoyed many of the trappings of the office. And access to classified information is certainly one of them. The allegations in the indictment regarding showing people this stuff or waving it around or joking about it or talking about it, references to “my boxes,” “I don't want you going through my papers.” It suggests that there was a feeling of personal connection. I can't get in the former president's head, but that is a common explanation in my experience. That there is this, this attachment these this, this attachment to the secret information in the classified information and to this, this stuff that imbued your time in a very intense and rewarding job.
Ryan: David, just one last question from me, which is something that's not in the indictment. And we've alluded to it a couple times in the conversation. The indictment alleges that the defendant deliberately communicated classified information to third parties. Yet the indictment does not charge him with that. So it's just you know, so the puzzle is, why does this indictment only charge for retention of national defense information and does not charge either under 793 for communicating national defense information to somebody else, or under 798 disclosing classified information to somebody else? And so that's part A question. And part B is, is the answer maybe New Jersey? So is the answer that that might be a difficult jurisdictional venue-based reason to be bringing that in Florida. But those that conduct took place in New Jersey, and if one looks at just the conduct that's alleged, and know that there's an audio recording of that entire conversation, it actually could be a case that the Justice Department has not by any stretch, said, you know, suspended their opportunity to charge that as well if they wanted to, but they would need to charge it in New Jersey. Is that part of the explanation, just trying to think through the puzzle of the missing charge?
David: It's interesting because the indictment doesn't just mention that. On page 14, before paragraph 32, there is a bold and underlined subtitle that says “Trump's Disclosures of Classified Information in Private Meetings.” So this clearly is, you know, part of the case. As you point out, it didn't happen in Florida. And that may be why it's not charged here, because there just isn't venue for that here. Which does leave open the possibility that there will be venue for it elsewhere. And, you know, just speculating here, you could end up with indictments in multiple districts, and the possibility that the defendant waives venue, and the cases get consolidated. And then the question would be where do they get consolidated? That would be very interesting. That is really, I mean, unless there's a proof issue regarding the specific document involved in the alleged disclosures, yeah, absent a proof issue there then venue would be probably the most likely explanation.
Paras: I know, I'm asking you to speculate here, but do you have a sense of how long this prosecution might take? Are we looking at months? Are we looking at years? Is it just impossible to know?
David: So there's, there's no typical period of time. It depends on a lot of factors. There, I've had cases where we battled over the protective order at the very beginning of the case that was necessary before we did anything else. And things did not pick up from there. In other cases, there's a very good relationship between the prosecution and the defense team and they're very professional, high levels of trust, pre-existing security clearances sometimes that make discussions and exchanges of information go much more smoothly. You know, I think we've already seen a shake up of the defense team here, so I don't know what that's going to be like. I don't know even how many members of the current defense team already have security clearances. It's very, very hard to predict and if there are battles in CIPA litigation, for example, that can add a lot of time.
CIPA refers to the Classified Information Procedures Act, which is a procedural statute that provides a framework for prosecutors to get a judge to rule in advance of trial about what classified information has to be disclosed to the defense in discovery, what classified information will be used as evidence at trial, and how that classified information will be protected at trial. And getting these rulings in advance allow prosecutors to calibrate whether their case can go forward as planned, whether they need to make changes, and whether they need to put more classified information out into the public than they originally intended to.
Section Five of CIPA, where the defense has to disclose to the prosecution whatever classified information it might want to use or disclosed during trial, even that simple step can take a very long time. The Ollie North prosecution is an example of this, where the defense just refuses to give a specific enough notice. And you go around and around and around, trying to get the defense to actually identify that information. There's so many places in any complex prosecution where sand can get into the gears. And I don't mean to say that flippantly, I mean, sometimes there are important rights at stake or important prosecutorial equities at stake. But there's also just sometimes sand that gets in the gears, and CIPA provides real opportunities for that. You end, you know, all of the advances in eDiscovery, and electronic filing and all that, it all gets messed up. Everything's hand carried, everything's printed on special printers and spoken about on special phones. And you need the stenographer who's cleared and the, you know, the court reporter machine that is secure, everything gets more difficult. Procedurally, logistically, as well as legally, so these can take a long time.
Paras: David, this has been such a helpful overview, and we've learned so much from your expertise and your perspective. Thanks so much for joining the show.
David: Thank you very much.
Paras: This special episode of the Just Security Podcast was co-hosted by me, Paras Shah and Ryan Goodman. It was produced and edited by Tiffany Chang. Special thanks to David Aaron. You can read David's analysis of the Classified Information Procedures Act and all of Just Security's coverage of the Trump indictment on our website.