Federal prosecutors in the classified documents case against Donald Trump have asked for a tentative trial date in December, but the complex nature of the US government’s own rules for using such secrets in court, and expected legal challenges, could delay the trial until at least the spring of 2024.
Trump was charged with retaining national defense information, including US nuclear secrets and plans for US retaliation in the event of an attack, which means his case will be tried under the rules laid out in the Classified Information Procedures Act, or Cipa.
The statute was passed in the 1980s to protect the government against the “graymail” problem in national security cases, a tactic where the defense threatens to reveal classified information at trial, betting that the government would prefer to drop the charges rather than risk disclosure.
Cipa essentially requires the defense to disclose what classified information they want to use at trial in advance, so the courts can decide whether to add restrictions. If the government feels the restrictions aren’t enough, they can decide whether they still want to continue with the case.
While Cipa established a mechanism through which the government can safely charge cases involving classified documents, the series of steps that have to be followed means it takes longer to get to trial compared with regular criminal cases without national security implications.
Cipa also requires the defense to review all classified materials and draft briefs in an ultra-secure room designed to handle secret documents called a sensitive compartmented information facility (Scif). If the only Scif is in Miami, just the back-and-forth travel could necessitate a slower schedule.
The prosecutors in the Trump case have indicated they want to get to trial quickly, but the complexities of Cipa and Trump’s clear preference for delay – if he wins the election before it gets to trial, the case may be dropped – could significantly push back the government’s proposed timetable.
To that end, the timetable amounts to more of a signal from prosecutors that they believe they would be ready to take the Trump case to trial before the end of the year, than a realistic schedule, since it will be subject to multiple hurdles, as identified by legal experts familiar with the process.
Cipa section 2: timings conference
Section 2 requires the US district court judge Aileen Cannon, who is presiding over the Trump classified documents case in Florida, to promptly hold a hearing with prosecutors and the Trump legal team to establish a timetable for the discovery of classified materials and their use at trial.
The process was started on Monday when Cannon scheduled a hearing to take place on 14 July. That date suggests she will pursue a slower schedule than proposed by the government, which had sought to get the hearing done and start the discovery of classified documents by 10 July.
Cipa section 3: classified discovery
Just like in any other case, the government is required to provide to the defense all materials they intend to use at trial – including the classified documents. Section 3 requires Cannon to issue a protective order governing the discovery of classified documents to the defense.
The protective order is the first hurdle because it needs to be blessed by Cannon before the government can start with the classified discovery. The Trump legal team may challenge the conditions of the protective order.
Trump can challenge the protective order by asking Cannon for an exemption – potentially to extend access to the former president himself – according to an informal handbook for prosecutors known as the Justice Manual, which could delay the start of the classified discovery towards the end of July.
If Trump opposes DOJ's proposed CIPA protective order and Cannon permits full briefing on it that goes past the July 14 hearing, we're looking at our first significant delay from DOJ's proposed schedule.
— Secrets and Laws (@secretsandlaws) June 27, 2023
They are negotiating it now, but if they can't agree, DOJ will file soon.
Cipa section 4: redactions in discovery
Section 4 stipulates that Cannon can authorize the government to “delete specified items of classified information from documents to be made available to the defendant through discovery” or to substitute the classified documents for “unclassified summaries” of the material.
It is unclear whether the government will file a section 4 motion. But if it does, that could prompt a challenge from the Trump legal team. If Cannon then agrees that Trump can have all the discoverable documents without restrictions, the government may seek an interlocutory appeal.
In its proposed timetable, the government gave itself a deadline of 14 August for a section 4 motion. Since that motion would govern the extent of the classified discovery, the Trump legal team may use it as a pretext to push back filing their section 5 notice (explained next).
Cipa section 5: notice from Trump
After the classified discovery is complete, section 5 requires the Trump legal team to file a notice specifying the precise classified information they intend to disclose at trial, including a “brief description of the classified information”.
According to legal experts, the defense at this juncture typically files a notice that the government finds too vague – a problem because it reduces the notice to “graymail” in writing – and the Trump legal team could do the same in this case.
In that event, the government would have to ask Cannon to force Trump to produce a more specific section 5 notice, pushing back the proposed deadline of 12 September multiple weeks after adding up the delays in section 4 and 5.
Cipa section 6(a): trial admissibility
Twenty-one days after Trump’s section 5 notice, the government has said it would be ready to file a motion asking Cannon to schedule a hearing under section 6(a) of the statute to adjudicate the relevance and admissibility of the classified information Trump wants to disclose at trial.
The government then suggests the Trump legal team get two weeks to file a response to the section 6 motion, for the government to get a week to file a reply to Trump’s response, and for Cannon to schedule the hearing to come seven days after the government’s reply.
The proposed timetable suggests the hearing takes place on 31 October, though earlier cumulative delays may push it back months, potentially to December.
At the hearing, Cannon would consider whether the Trump legal team needs the classified information that it outlined in its section 5 notice to make an effective defense against any potential objections from prosecutors who might want to limit the extent of the disclosure at trial.
Cannon would make a determination on each item of classified information. Her final ruling might not come down for days after the hearing, not least because she may choose to look through all of the classified documents and classified discovery herself to reach a decision.
Cipa section 6(c): redactions for trial
If Cannon decides in her discretion that Trump can use all the classified information he wants at trial, section 6(c) says the government can propose to Cannon that Trump instead use unclassified “substitutes” or, more commonly, redacted versions of the documents.
The substitutes can either be a statement admitting relevant facts that the classified information would prove, or a summary of the classified information instead of the classified documents themselves.
But Trump could challenge any redactions on the basis that a jury could draw a prejudicial inference from them – they might see the redactions as evidence the document is sensitive – and Cannon is not required to accept the government’s proposal for substitutions.
Cipa section 7: final appeals
If Cannon rejects restrictions sought by the government, prosecutors can appeal under section 7 to the US court of appeals for the 11th circuit. If the appeals court also rules against the government, the attorney general must decide whether to continue the prosecution or drop elements of the case.
The proposed timetable from the government suggests a section 6 hearing on 5 December. But the holidays and potential challenges from Trump may push a hearing back into the start of 2024. A final decision about what Trump can use at trial might not come until weeks afterwards.
