Photograph Source: Charles Edward Miller – Public Domain
Two federal judges presiding over Trump cases issued orders yesterday on the handling of classified information (“CI”) at trial. The orders came to opposite conclusions on virtually the same issue. Which one is correct?
The trial before Judge Chutkan in D.C. is on Trump’s alleged attempts to subvert the 2020 presidential election. The case before Judge Cannon in Florida is about Trump having unlawfully retained classified information.
There are legal procedures for how judges must handle CI in the context of a criminal trial. I’ll get into those procedures in a minute.
But first, let’s agree that Trump had no right to retain classified information beyond his presidency. And whether he had it in his possession after he left office or whether some piece of CI relates to him at trial, he still has no clearance to view it. His right to defend himself, however, raises the issue of whether he or his lawyers must be given some degree of access to CI that the prosecution plans to use against him.
Classified information relates to national security. It may relate to defense information, or nuclear codes, it may contain the identities of our agents or informants who operate overseas or in the U.S. It is information we do not want our enemies to have. It is information that, if revealed, could expose us to harm.
If you are a patriot, if you believe in the rule of law, the U.S. Constitution, legal process, civil liberties, you cannot avoid the necessity of classified information.
Think of classified information like clothes. Clothes protect you from the elements and cover your body from unwanted views. Without clothes, you are more vulnerable. So you are the one who gets to decide who sees you naked and who doesn’t. It is your right. It isn’t up to those who wish to view you naked. Unless of course they are defending themselves from something that your naked body would prove or disprove. And in that case, who decides what happens? We want a neutral arbiter to do that, right? And we want it done in such a way as to respect both your privacy and the defendant’s right to defend himself. That is what CIPA ensures.
CIPA stands for Classified Information Procedures Act. It was enacted by Congress in 1980 and it provides procedures for handling classified information (“CI”) at trial. Section 3 stipulates: “Upon motion of the United States, the court shall issue an order to protect against the disclosure of any classified information disclosed by the United States to any defendant in any criminal case in a district court of the United States.”
Section 4 additionally stipulates that the court “may authorize the United States to delete specified items of classified information from documents” used by the government at trial “or to substitute a statement admitting relevant facts that the classified information would tend to prove.” (Section 4, emphasis mine.)
These two sections provide two different procedures the government may use to protect classified information from being revealed publicly at trial or from being improperly used by the defendant. Section 4 provides a procedure by which CI may be used without being revealed to the defendant, whereas Section 3 merely protects the CI from being revealed publicly by either party.
Die-hard civil libertarians may find Section 4 alarming but it has been on the books for more than 40 years and there is substantial case law behind it. Importantly, courts must still balance (and have balanced) the defendant’s constitutional rights against the government’s interest in protecting CI. (Here is an excellent brief but detailed analysis of CIPA law by the Congressional Research Service. See pages 11–13, “Confrontation Clause and the Silent Witness Rule,” for balancing cases. See also Judge Chutkan’s summary of case law relating to Section 4 in her order, available here (at bottom), pages 1–2.)
Judge Chutkan knows CIPA law; Judge Cannon clearly does not. Worse, Cannon engaged in statutory interpretation apparently without researching the case law. (Both decisions can be read here (scroll down).)
Let me state this directly and clearly: in the U.S., case law is the law. Where there is a statute that must be construed or interpreted, judges engage in that work by issuing opinions that carefully analyze the statute in question. That is what case law is. It is judge-made law.
Once a judge in a particular jurisdiction issues such an opinion, that case rules for that jurisdiction and any below it.
If that opinion is appealed to a higher court, the decision of the higher court will rule. And so on up to the Supreme Court.
(State and federal courts are separate systems, so a federal decision is not binding on state courts and vice versa.)
Judge Cannon has an obligation to follow case law for her district. Her decision fails to do that and makes a mockery of CIPA. It makes a mockery of the federal court where she presides. Her decision is wrong on the law and cannot stand. Jack Smith will likely make an interlocutory appeal of her order. Given the egregiousness of the decision, Smith will likely prevail. The 11th Circuit will likely reverse her decision. I don’t think we are yet at the point where she will be removed from the case. The Circuit Court is more likely to put her on a leash and see if she breaks it, in which case she’d likely be removed from the case and/or sanctioned. Like Trump, she is no longer a rogue actor but is under the watchful eye of the judicial system.
