If you’re following the prosecution of cases involving mishandling of classified material on a regular basis, the reading of the indictment against former President Trump reads very similar to others who have hoarded classified materials which they did not want discovered. You quickly realize the only unique aspect of this indictment and presentation is the fact that the indicted individual is a former President. The accused has been charged with more than 35 federal crimes surrounding his handling of classified materials. His arraignment was held on June 13, and he pled “not guilty.”
Protective Order
On June 16, the DOJ requested a protective order concerning the discovery of unclassified information, and limiting access to the information to defendants and those engaged in the defense of the defendant, or potential witnesses. In addition, each person who has access to the “discoverable material” will sign a “protected discovery material agreement” which in essence declares the information will not be shared.
Additionally the defense team will not make additional copies except as necessary to prepare for the defense. Finally, the information will not be disclosed to the public, or news media, or disseminated on any news or social media platform, without the approval of the court. The requested protective order was granted by Judge Bruce E. Reinhart on June 19.
CIPA
Prior cases which are of similar nature have had the “Classified Information Procedures Act” (CIPA), and we covered how the courts use CIPA to protect classified materials was invoked. The methodology is the same, the first step being to ask the court to issue a protective order which covers the storage, handling, and access to the sensitive information.
Some interesting nuances of CIPA as discussed in the Department of Justice explainer, is the need for the protective order to be “sufficiently comprehensive to ensure that access to classified information is restricted to cleared persons and to provide adequate procedures and facilities for proper handling and protection of classified information during the pre-trial ligation and trial of the case.”
In the court’s Omnibus Order setting the trial date for August 14, Judge Aileen M. Cannon, highlighted that any motion for continuance which includes the “anticipated impact of the Classified Information Procedures Act … indicate whether the reasons served by granting the continuance outweigh the defendant’s constitutional and statutory rights to a speedy trial.”
While CIPA has not yet been requested, given the Omnibus Order of June 20, it is anticipated that a motion will be made for the handling of classified materials in the same manner as other cases. Thus Judge Cannon, can be expected to appoint a “Classified Information Security Officer” and alternates. This CISO is responsible for ensuring the information is accessible, yet only accessible in a secured area.
Notable CIPA cases
As you watch this case unfold, it’s a good time to take a walk down memory lane on other cases. Different circumstances and people, but similar procedures had to be put in place.
- Peter Debbins – Who pled guilty to being a Russian spy saw the court invoke both the Intelligence Identities Protection Act and the CIPA be put in place via a 17-page court order. He was sentenced to over 15 years in prison.
- Jonathan and Diana Toebe – Pled guilty to attempting to share U.S. nuclear secrets with a foreign power, Brazil. Much of the back and forth of the sentencing memorandums took place in accordance with CIPA guidelines. Jonathan was sentenced to over 19 years and his spouse, Diana to over 21 years.
- Harold Martin – An NSA contractor who over the course of his 20-year engagement with the intelligence community hoarded over 50 terabytes of data. He was sentenced to nine years in prison.
- Nghia Hoang Pho – Stole numerous NSA documents from within their Tailored Access Operations (TAO) group and was sentenced to 60 months in prison.
- Reality Winner – She stole and shared one Top Secret/SCI document, from the NSA, to the media outlet “The Intercept.” Her lawyers negotiated a 63 month sentence, which she received.
- Terry Albury – A former FBI Special Agent was sentenced to 48 months in prison for having stolen and shared classified FBI documents over an 18-month period with the media outlet “The Intercept”.
