Thread by @BVanGrack

The Classified Docs🧵:
There have been lots of questions on why these 31 classified (CL) docs were selected and how they will be used. This thread addresses three questions (1) Why the 31 docs? (2) Will the docs be declassified? (3) How will the CL docs impact the trial?

1. Why so many docs? It’s common in cases involving mishandling of CL docs to charge multiple CL docs to capture extent of harm & protect the case if issues arise w/ a doc—e.g., jury thinks doc doesnt contain “national defense” info (NDI) as required under 18 USC 793(e).

One theme identified by others is that some of the CL docs are grouped by theme and date.

lawfareblog.com/what-are-class…

That has the benefit of allowing DOJ to have a single witness testify about the topic in those grouped docs and why that info pertains to the “national defense.” It thus can help streamline the case.

https://twitter.com/secretsandlaws/status/1667512579889954816

Additionally, I suspect we’ll later learn the charged CL docs were found in multiple rooms at Mar-a-Lago. As noted by others, the indictment doesn’t provide such specificity. That distinction between the rooms may become important depending on the evidence presented at trial.

2. The CL docs do not have to be declassified. DOJ can and likely will just show the docs to the jury as classified and not “publish” or show them to the public. This is the most common method to prove a case involving unlawful retention of CL docs.

While there is speculation DOJ may declassify some of the docs, that is very unlikely. First, that is not normally how these cases are proved. Second, the indictment doesnt signal that they are no longer classified.

Third, the docs HOPEFULLY still contain sensitive info—as in the info has not been fully compromised by FTOPUS’ mishandling of them.

And, finally, declassification would undermine the argument that they are NDI. Even though DOJ technically must only prove the docs were NDI at the time of the unlawful retention, declassifying now raises the question that perhaps they really aren’t/weren’t that sensitive.

Additionally, if DOJ was going to declassify them, I would have expected to see more lightly sensitive docs, such as more SECRET docs. But these are highly sensitive docs.

3. How will CL docs impact the trial? They will create significant delay and litigation risk. Using CL docs, which is required in cases involving the retention of NDI under Espionage Act, involves a separate process for discovery and litigation.

Much of the analysis concerns the Classified Information Procedures Act (#CIPA), and there are multiple articles explaining the Act. CIPA is a separate process for using CL info in a prosecution.

lawfareblog.com/classified-inf…

First Complication: Security Clearances. At least one defense counsel will need a security clearance (likely an interim clearance). While FBI will expedite the process, some of the docs are very sensitive so process could take longer. We also dont know the entire defense team.

Second Complication: Educating the Court. Most judges are unfamiliar w/ CIPA b/c it's rarely used. So DOJ will file a motion under CIPA Section 2 to have a conference to educate the Court. I anticipate DOJ will file the motion very soon—it’ll be one of their first motions

Third Complication: Litigation. Per standard practice, I expect DOJ already reviewed potentially discoverable CL info before indicting FPOTUS and is already prepared to argue why certain CL docs do not need to be produced under CIPA to defense counsel.

This process takes time and will be unfamiliar to the judge. Critically, defense may seek to push for discovery of unexpected classified info w/ novel arguments or try to use at trial the CL material it did receive in discovery, which could lead to delay and complication.

This CIPA process can also lay the foundation for graymail down the road. Graymail is when a defendant tries to defend themselves by disclosing CL info in a way that could force the government to choose between continuing prosecution or endangering national security.

Defense counsel isn’t likely to create graymail issues w/ the 31 docs, which the Intel Community has already determined can be shown to a jury. The problem is with any other classified material.

As the parties and Court try to assess how long it will take to bring this case to trial—which is a significant issue since the primaries begin in 7 months—the above issues are why the CL docs will cause delay.

Fortunately for DOJ, multiple attorneys on the prosecution team are incredibly experienced with CIPA and these issues—among the most experienced in the country—so risk and delays will be minimized. But they are also unavoidable.

Forgot to include this CIPA explainer from my former colleague:

justsecurity.org/86812/secret-e…