Brandon Van Grack Profile picture
Co-Chair, National Security practice @MoFoLLP | fmr. DOJ natsec official incl. #FARA Unit Chief, Leak Czar, prosecutor | #sanctions #CFIUS #cyber | views my own
Barb Profile picture Diana Roby Profile picture sally paddles Profile picture Richard Ettelson Profile picture supertek.. Profile picture 13 subscribed
Jul 17, 2023 10 tweets 2 min read
Below are five things to look for at Tuesday’s Classified Information Procedures Act (#CIPA) pretrial conference in the Mar-a-Lago case. Although the conference is not intended to decide substantive issues for using classified info, there should be plenty to dissect.🧵 1. Scheduling. Arguably the most important part of the conference will be scheduling future CIPA filings/proceedings. DOJ proposed a schedule; defendants didn't offer any dates. The closer the Court adheres to DOJ’s dates, the more likely we'll have a trial before the election.
Jun 11, 2023 21 tweets 4 min read
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).
Jun 9, 2023 4 tweets 1 min read
Four reactions to this list🧵(1) Listed Espionage Act charge only mentions 'retention' and not disseminating the classified docs. Disseminating would have signaled that FPOTUS caused more serious harm to nat'l security. Curious if indictment nevertheless describes dissemination (2) The 'retention' reference could be one count or multiple counts. It's not uncommon for each classified doc allegation to be a separate count.
Sep 25, 2022 15 tweets 3 min read
The Declass Defense 🧵: FPOTUS’s recent stmts that he declassified “everything” and may have done it secretly (“by thinking about it”) merit a review of how a secret declassification order would impact an Espionage Act charge for retaining nat'l defense info (“retention charge"). As a starting point, the fact that a document has been declassified is typically relevant to a retention charge, even though the law does not specifically refer to classified information. The Espionage Act predates our current classification procedures and nomenclature. /1
Sep 20, 2022 5 tweets 1 min read
If ALL docs were actually declassified, which is not supported by the record at this time, it would be RELEVANT to whether DOJ would charge Espionage Act(18 USC 793(e)) even though the law doesn't say classified info. /1 DOJ explained in footnote 2 of affidavit that 793(e) uses the term “national defense information” (NDI) not classified info, and courts have held NDI means the info must be “closely held” and some courts have held disclosure of docs “must be potentially damaging to the US.” /2
Sep 18, 2022 8 tweets 2 min read
One topic left unaddressed in Judge Cannon’s order is the issue w/ providing appropriate clearance for FPOTUS attys (if DOJ’s appeal is denied). It is more complicated than simply providing “necessary clearance requirements,” as ordered by the court. 🧵 1/ In the typical case where classified docs must be provided to defendant's attys, the attys fill out a questionnaire, undergo an expedited clearance review, and obtain a “limited security approval,” as my former colleague notes @secretsandlaws /2
Sep 15, 2022 5 tweets 1 min read
Next Monday is a big day for the Foreign Agents Registration Act (#FARA) and foreign influence in the US—on top of what has already been a big year (DOJ has charged a record number of people w/ acting as unregistered agents of foreign govts). /1 First, the Tom Barrack trial begins for acting as an unregistered agent of UAE (in violation of 18 USC 951). It’s only the second trial of a person alleged to be acting as a foreign govt agent to influence people in the US (most other cases involve espionage-like activity). /2
Sep 4, 2022 8 tweets 2 min read
There have been some harsh critiques of DOJ’s staffing of the Mar-a-Lago investigation in response to my thread below. So I want to provide additional color. 1/ Jay Bratt, the Chief of CES, spent extensive time in DC as an AUSA and knows that district well. Julie Edelstein is one of the country’s most experienced espionage prosecutors. So DOJ has put its two best national security attorneys at the helm on this one. 2/
Sep 4, 2022 14 tweets 3 min read
For yet another week, attorneys from Counterintelligence & Export Control Section (CES) led the Mar-a-Lago investigation. While CES’s involvement is expected, the absence of local prosecutors is surprising. 🧵on DOJ staffing and what to look for as the investigation advances. 1/ Within DOJ there are subject matter experts who work directly at the headquarters of DOJ (called Main Justice attorneys) and local prosecutors who work in one of 94 districts across the country each led by a US Attorney (called Assistant US Attorneys (AUSAs)). 2/
Aug 28, 2022 14 tweets 3 min read
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/