Paras Shah: Since former President Donald Trump was indicted for retaining sensitive government documents at Mar-a-Lago, the Espionage Act has become a household term. But only a small number of lawyers have seen an Espionage Act trial from the inside. Just Security has assembled an all-star roundtable of experienced federal prosecutors and defense attorneys who have handled high-profile Espionage Act cases.
Joining me to share their insights, experience, and views on Trump’s Espionage Act charges are David Aaron, Andrew Weissmann, and Jim Wyda. David and Jim have previously faced off from opposite sides of an Espionage Act prosecution, but they’ve come together for this special discussion.
This is the Just Security podcast. I’m your host Paras Shah.
Before he joined private practice, David was a prosecutor at the Justice Department’s National Security Division. Andrew has served in many senior Justice Department roles, including on the leadership team for Special Counsel Robert Mueller and as the General Counsel of the FBI. Jim is the Federal Public Defender for the District of Maryland.
So, Andrew, David, Jim, welcome to the show. Thanks so much for being here. There's a lot to discuss with the Trump prosecution over retention of National Defense Information and the Espionage Act. I want to jump in and start with Jim — you have been on the defense side of a number of these types of prosecutions in the past, and what do you see as the Trump team's strongest defenses?
Jim Wyda: So, a pretty standard defense that I think comes up in all these cases is the willfulness element of a 793 prosecution, and the government has to prove that the defendant had knowledge that he possessed National Defense Information, something the law forbids. In this case, you can see the framework of this defense being floated occasionally by former President Trump and his defense team. It's the volume of documents that were in boxes with many, many other materials. The government is going to have to prove that he had knowledge of the specific documents charged in the indictment.
David and I had litigated over that standard in the context of another case years ago, and it had to do with, again, with someone having a large number of documents, many of which were not classified information, some of which were, and the issue became what the government had to prove to establish that the defendant in that case willfully possessed National Defense Information.
The second potential defense, which again, is related to the same element, and again, I think we've heard it floated by former President Trump, is that he believed that he could declassify information sort of whenever he wanted when he was president. And my understanding is that there are procedures in place to do that the proper way. But if he was making a mistake, if he sincerely believed that and believed that these documents were lawfully in his possession because he had declassified them, again, I think that is a defense to the former president. So again, the government will have to prove that as well.
Finally, this case is unique because of former President Trump's status as a candidate for president. He has a defense that's not available, potentially to most clients, which is if this case moves slowly enough, it's going to be difficult to hold a trial before the election. And if he's elected as president, he may be able to end the prosecution because of his role as President of the United States.
Paras: David, do you want to chime in on the points that Jim has raised about potential defenses?
David Aaron: On the willfulness point, I think, in the Harold Martin case, which Jim and I were on opposite sides of, we did litigate the question of whether the defendant had to know specifically that he possessed the particular documents that were charged in the indictment. And in that case, the judge ruled that the government had to prove that Martin possessed a large amount of classified information and knew that he did, and knew that he wasn't allowed to. But the government did not have to prove that he knew that he possessed the specific documents charged in the indictment.
That's only one district court case. It's not binding. But it is an interesting data point, and obviously, there was some precedent that we could draw on to support the argument. I would imagine a similar argument is being made, but it's also entirely possible that the government's selection of the documents to charge incorporated or anticipated this argument and that they chose documents that they could actually prove the defendant knew he possessed.
Andrew Weissmann: So this is what's so great about the facts of this case, in terms of, you know, again, just what's alleged, is that Chris Hayes has made this point on air a lot, which is that the indictment makes Donald Trump look like he's obsessed with the contents of these documents and is personally going through them. So in my world — which I prosecuted a lot of CEOs, very sort of high level people — a classic defense is, “I had no freaking idea what junior people were doing! It's all happening beneath me. And I don't know what people were looking through.” By the way, sometimes that's a really good defense, it's actually true, and they shouldn't be charged.
Other times, it's just, it's a lot of BS, and you know, they actually did know, but here you have Donald Trump according to what looks like contemporaneous texts between employees one and two, where Donald Trump is personally going through these documents, and very concerned about what he's retaining and what he's not retaining. And it looks like employee one, employee two and Mr. Corcoran are all going to be very sort of instrumental in the government being able to share this specific knowledge that Jim would say — and I think maybe rightly — that the government does bear the burden of making sure they prove that beyond a reasonable doubt.
Jim: But there's clearly a distinction with President Trump being able to remove documents from the White House. And again, if he's found to possess documents, if it's, you know, if there's a reasonable doubt as to whether he knew that these documents were National Defense Information, it seems to me that it has to be a defense, again, because that's the defense that all the people who aren't being charged, that it's being applied to them, you know, most obviously right now, former Vice President Pence had documents in his possession. He brought documents home, you know, from his time and in Washington, you know, apparently by mistake,included National Defense Information in there. It has to be that when you mistakenly have something that you've removed from a workplace, because of sloppiness, because of the rush, that you — that that's the defense.
Andrew: I think there's no question that you have to prove intent. And there is a difference between knocking over a glass of milk and taking a glass of milk and throwing it on the floor. It seems to me that there are at least two issues with that area, like what you've articulated, it's not that it's not possible to have to try and argue willfulness.
But one is that that's sort of separate. Everything you've addressed really goes to one half of the indictment, which is with respect to the illegal retention of National Defense Information, but there's also a separate part of the indictment that has to do with obstruction. And that, in many ways, is a simpler case. And the content of the documents is only relevant to the extent that they're classified markings on the documents since the grand jury subpoena was for any document which bore classified markings. Whether it was classified in his head or not, it doesn't matter. It was those documents that needed to be returned. Obviously, you can have a willfulness defense to that, which is that he didn't know he had these documents, and he didn't know that they bore classification markings. That's a little harder given the allegations in the indictment, and presumably what employee one and employee two will talk about and what the attorneys will talk about, both White House Counsel attorneys and his own personal attorneys.
And the second issue is that a lot of this would need to be put forth through some kind of competent evidence of the defense that can come obviously from Donald Trump taking the stand, which I think from a defense lawyer’s perspective is singularly unappetizing. And that's where I think there's a really interesting strategic issue for Jack Smith, because there're so many statements that Donald Trump has made publicly that are completely inconsistent. But, if Jack Smith opens the door to that, and wants to put that into evidence to show a variety of different statements, that is a way for the defense to get that story out without the former president having to testify.
David: I think it'd be a really interesting decision to watch, because certainly, the defense of a legal error — “I thought I was allowed to do this,” for whatever reason, whether it's declassification or otherwise — the defense of, “I thought I was allowed to do this,” would have to be predicated with some indication, some evidence of that, or else a motion in limine could probably preclude that argument.
Paras: So one of the issues in this case is that the classified documents themselves that are subject for the 31 charges under the Espionage Act are still classified. And that's an issue because a lot of different people need to have access to these documents in order to prosecute the case — the defense counsel, there's a question on how much jurors can see and how prosecutors handle that. And there's a federal law in place called the Classified Information Procedures Act, CIPA, that will play a prominent role. All our panelists have had experience litigating CIPA cases.
Jim: In every case I've done, the government wants to do a little bit of what Andrew has done factually, which is saying, “It's all in the indictment. We're gonna give you the following documents in your SCIF, so you can review the classified documents that we think are an issue, and there's nothing else you need to consider.”And again, it's been my experience, and honestly, I bet it's been most prosecutors’ experiences, there's almostalways more to the story than the indictment. And again, that's where the CIPA process in this context comes in.
I don't think we're going to know the answer to the allegations in the indictment unless we know the context as to what was going on in Mar-a-Lago, what was in those boxes, and again, you know, the volume of what was classified, and what was golf shirts and newspaper clippings to suggest that there could have been a mistake made by President Trump or by or by someone looking through those boxes. But, you know, there's no secret that the President has felt attacked, and so if he's suspicious and trying to protect private information, not classified information, then I think that's something that the CIPA process will also have to explore to understand what the context is at Mar-a-Lago, and that the case is about far more than, you know, the 31 documents and texts from a couple of employees.
Andrew: So I always have this question, which is, you know, because CIPA is supposed to deal with this big picture problem of that criminal trials are public and classified documents, by definition are private, and how do you sort of square those two things when you've got an allegation of wrongfully retaining classified or National Defense Information? Let's leave aside the obstruction part because it gets, I said, I think that's a lot easier in this case. And I understand a lot of arguments for why the defense in the discovery process would want access to the full panoply of what was ever at Mar-a-Lago, whether it was partially returned to the National Archives, at any point was sort of taken from the White House. But what is the best argument or arguments for how more than the 31 documents should be allowed into the trial?
Jim: Again, we know very little right now. We know the indictment and we know, you know, I watch the same stations and sort of am looking for the news here. Again, I think one of the things that will, I'm assuming, will be part of the defense is that there was no logic to this, right? That there's — you're going to have to sort of see, I would at least push to see if there are other classified documents there, if there were non-classified, unclassified documents, just innocent documents there.
Again, I think it's problematic for President Trump if there is a folder with, you know, five documents related to some country's national defense situation, you know, some foreign adversary, and there's handwriting and fingerprints from President Trump on that. That's obviously incredibly problematic. If instead it's a mess, that there's no rhyme or reason to the topics, that it's random, and that it's interspersed with golf cards and mementos and coffee cups, I’m going to want to be able to see all of it. Just like in every case in our office, we go to an evidence review to try to see what was in the home that was searched, what was present in the car? What are the emails that are on our client's computer in a white collar case? And honestly, there's no reason, you know, with clearances, and with access to a SCIF, that the defense shouldn't be able to see the whole picture before making its decisions.
Andrew: So let's say I'm with you on that, and that you can see this stuff. But then what? Then what is the argument for why the jury gets to see it? Particularly, let's say, let's say there are five documents that have to do with nuclear capabilities of the United States? A judge is gonna be like, “I'm sorry, I'm not gonna let you put on evidence that's even more inculpatory.”
Jim: So again, I mean, we would want to present that this was a chaotic scene, and that he may not have known what he had. And to do that, we have to see everything. There may be — you know, that's where you go to the substitution process with CIPA so that, you know, there's something — if there's something that the jury can't see, again, we would, we might argue that they have to see a lot because we don't want David or, you know, are another prosecutor saying you can't have even glanced at this and not realize that this was National Defense Information, or something like that. But if there's something really grave, then there's the opportunity for a substitution.
David: No, I mean, I think you've made the exact point that a substitution or a stipulation or even, you know, a heavily redacted document, could be used to accomplish that defense purpose of — and I mean, this respectfully — creating ambiguity where the prosecutors have seen a kind of narrow certainty. And so I think part of the answer, Andrew, is, a defense team probably doesn't know exactly why they might want to use, as evidence, the classified information that they see, during the discovery process. Certainly establishing the context in which information was kept, you know, to undermine that willfulness element, is probably at the top of the list.
But I think if the prosecutors are dealing with highly sensitive information, highly sensitive documents that, you know, they knew were there, and that the intelligence community wouldn't allow them to use, then we'd be looking at a stipulation or a substitution or redaction, like Jim said.
Andrew: Does everyone agree that at least for the purposes of discovery, knows what it is that the defense gets to see, and what the defendants get to see, that they should be able to see everything that was, at one point, removed from the White House and taken to Mar-a-Lago or anywhere else? Does everyone agree that that's something that at least at this stage, the defense should see, in order to make the arguments?
David: For information to be classified by the government, it has to meet criteria set out in an executive order, and it has to be owned by or produced for the government and the restrictions that the government wants to place on it has to be related to national security. And there are also a list of reasons that it's unlawful to classify information, such as, you know, that it would be embarrassing if it got out.
But at a basic level to be classified, the government has to assess the likely damage that would occur from the unauthorized disclosure of that information. And if unauthorized disclosure of that information reasonably could be expected to cause damage to national security, then it can be classified as confidential. And if it reasonably could be expected to cause serious damage to national security, it can be classified secret. If it could reasonably be expected to cause exceptionally grave damage, then it can be classified as top secret. And so those are the different levels of classification.
Any classified information can also be put into what's called a compartment, which would make it not only classified, but also Sensitive Compartmented Information or SCI, and that's for information that usually, because of the sources and methods involved, the agency that produced that information has determined it needs extra protection. So it's to access information that is compartmented. It's not enough to have a security clearance at the right level, you also have to be what's called read into, or let into, that compartment. And some compartments have pretty strict limitations on how many people there can be with that access, or what the justifications for having that access are. And that's just a way to further limit the number of people who have access to it, because every single person, every additional person who has access to information is essentially another marginal unit of risk.
I will say this, that, in the cases that I handled, there were bits and pieces that the intelligence community was uncomfortable turning over to defense counsel, and when I say bits and pieces, I might be referring to half a line of a document. And in those cases, you know — even though the defense team had a TS, SCI clearance, they had, you know, the most common SCI tickets — there was some information that we did seek permission from the judge to redact from from discovery, you know, making it clear, obviously, that we wouldn't rely on on that material to prove the defendant's guilt.
So I'm guessing here that this team wants to be as forthcoming as possible, and they want to have as few issues as possible. And it was interesting to see in their CIPA filing that they were willing to share Compartmented Information based on an interim clearance with a two day turnaround except for certain compartments, which says to me, they're leaning very far forward in what they are disclosing to the defense.They're going to wait for full clearances for some small subset of that, but who knows, given where this information was recovered from and the level of sensitivity of some of it, there may be some that the government has a good reason not to share with defense counsel, even with the clearance.
Andrew: So I was wondering if I could take us back to where we started, because Jim gave a really great explanation of possible defenses on the unlawful retention of National Defense Information, but I wanted to turn to the other set of charges which deal with obstruction, because they seem much more clear cut and, and also, Jim, you're built as a defense lawyer, I mean that in a really good way, that you look at this and think what are the possible holes and what kind of arguments you would make? And obviously, as a prosecutor, you think about that, too, but definitely, you know, with sort of one arm tied behind your back, you don't, you're not really built that way.
Jim: I guess what I would point to, and, right, I'm no great expert on President Trump, but in some ways, his mind seems just so disordered and chaotic. It's hard to imagine him having a specific intent. It doesn't sound like a great defense for any of my other clients to say, he didn't mean that — that's not, you know, he said that, but that's not what he meant — except it's something that President Trump does all the time. He speaks to shock. He speaks to entertain. And there are, I think, hundreds, if not thousands, of examples of him saying things that most of us consider to be untrue. Yet many people continue to support him and listen to him.
And so like, even the idea of having a specific intent to accomplish a goal is more complicated with President Trump because he says lots of things that he doesn't mean. And so, again, there may be things that he's doing. And there may be things that he's saying that seem to be obstruction to the prosecution team that I actually think will pass the laugh test for the defense to say he said that, but that's not really what he meant. It's a defense that doesn't work for any of my other, any of my clients. But it might mean something here because of the unique nature of President Trump.
Paras: There are a lot of different issues to watch in this case, and this has been such a wonderful, rich discussion. Thanks so much to each of you, Andrew, David, Jim, we really appreciate your time and thanks again for joining the show.
Andrew: Thank you.
Paras: This episode is hosted by Paras Shah, with co-production and editing by Tiffany Chang, Michelle Eigenheer, and Allison Mollenkamp. Our music is the song, “The Parade” by Hey Pluto.
Special thanks to David Aaron, Clara Apt, Andrew Weissmann, and Jim Wyda. You can read all of Just Security’s coverage of CIPA and the Trump indictment on our website. If you enjoyed this episode, please give us a five star rating on Apple Podcasts or wherever you listen.