Thread by @BVanGrack

Lots of questions on how DOJ can use/disclose classified (CL) info in a criminal case, such as Mar-a-Lago (MAL), and whether the judge overseeing Trump’s special master request (Judge Cannon) can see the CL info. 🧵below on the Classified Information Procedures Act (#CIPA). 1/

Judges don’t need a security clearance to review CL info. So if Judge Cannon requests access to any of the CL docs seized at MAL, DOJ would be hard-pressed to deny the request. However, her order should not be read as a request to review CL info at this time. 2/

Juries don’t need a security clearance to review CL documents. This can lead to issues charging mishandling of CL docs, discussed in more detail below. 3/

uscode.house.gov/view.xhtml?req…

As for defense counsel, their access to CL info is governed by CIPA, which regulates DOJ’s disclosure of CL info in criminal cases (separate rules govern civil cases). CIPA balances the rights of defendants w/ interests of the US govt to protect CL info. 4/

CIPA was primarily established to address the issue of graymail—when a defendant tries to defend themselves by disclosing CL info in a way that could force the US govt to choose between continuing to prosecute them or endangering national security. 5/

Defendant’s counsel must obtain an appropriate security clearance to receive access to CL info. That has led to cases where a def's counsel can't obtain the requisite clearance and so the defendant needs to obtain add'l counsel. 6/

law.cornell.edu/uscode/text/18…

Another challenge with CIPA is that it doesn’t require that the defendant receive access to the CL info. This can be an issue in cases involving terrorists or individuals who never had access to the CL info. 7/

It’s also possible for persons who previously had a security clearance—like spies—to be denied access to CL info they once possessed. This is often an area of significant dispute between the parties and normally requires the judge to weigh in. 8/

DOJ can use CIPA to request that a judge authorize its decision to not provide certain CL info to defense counsel. 9/

law.cornell.edu/uscode/text/18…

In cases involving mishandling of CL info, some of it must be disclosed to defense counsel because the criminal charge involves identifying the specific CL docs that were allegedly mishandled. The CL info must also be shown, in some fashion, to a jury. 10/

That leads DOJ and Intelligence Community to look for Goldilocks docs—not so sensitive that the Intel Community would prohibit disclosure to defense counsel/jury and not so bland that they don’t appear to implicate national security. 11/

In the case of MAL, with hundreds of documents at issue, there may be some CL docs that would be too sensitive to provide to defense counsel and/or a jury, such as the ones marked TOP SECRET/HCS or SI. However, there would likely be plenty of other CL docs to use. 12/

At trial, in a case involving mishandling CL docs, DOJ would need to find a way to provide the mishandled CL docs to the jury. It often involves showing the CL docs to the jury, but not to the public, and not allowing anyone to read info from the CL docs in court. 13/

The procedures and issues above are seldomly at issue in cases and require particularized knowledge and experience. At DOJ, a special section handles CIPA cases—the Counterintelligence & Export Control Section, which is running the MAL case. 14/