A federal judge on Tuesday rejected an attempt by Donald Trump to review a sensitive court filing submitted by special counsel prosecutors that detailed their reasons for wanting to redact some of the classified documents that would be turned over to the former president in discovery.
The attempt by Trump to access the filing was a brazen move that would have defeated the purpose of rules to protect national security in Espionage Act prosecutions and potentially thrown into disarray the scope and viability of continuing the case against Trump.
In a nine-page order, the presiding US district judge Aileen Cannon ruled that Trump should not gain access to the secret filing because his legal team could prepare a defense without it, even as she took issue with prosecutors’ reasoning for why access should be withheld.
The secret filing – known as a section 4 motion under the Classified Information Procedures Act, or Cipa – has long been treated as inaccessible to defendants because it discusses the very classified information that prosecutors want to redact, as well as their reasons for the redactions.
If defendants were given access to the section 4 motion, including the referenced classified documents in unredacted form and the accompanying declarations from the US intelligence community, it would effectively defeat the purpose of the motion and the Cipa statute more generally.
Trump was charged last year in federal district court in Florida with retaining national defense information by the special counsel Jack Smith, which turned the case into an Espionage Act prosecution governed by the rules laid out under Cipa.
The Cipa statute was passed in the 1980s to protect the government from the “graymail” problem, a tactic where defendants threaten to reveal classified information at trial, betting that the government will prefer to drop the charges rather than risk public disclosure of intelligence secrets.
There are seven sections to Cipa. At section 4, where the Trump case currently stands, prosecutors can ask to redact parts of the classified documents that defendants are entitled to receive in discovery that would not be “relevant” or “helpful” in constructing defense arguments for trial.
The basic goal of section 4, according to national security law experts, is to protect classified information from unnecessary exposure and graymail.
Trump was entitled to challenge the government’s section 4 motion and ask that the number of redactions be minimized, though a wholesale rejection by Cannon would almost certainly have triggered an immediate appeal by prosecutors to the US court of appeals for the 11th circuit.
Cannon has previously drawn scrutiny from the 11th circuit. Before Trump was indicted, she upended the underlying criminal investigation by issuing a series of rulings favorable to Trump before the appeals court ruled she never had legitimate legal authority to intervene.
But it was an aggressive play, even by Trump’s standards, to ask the judge not only to reject prosecutors’ request to redact the documents but also to see the underlying section 4 motion: it amounted to Trump’s lawyers asking to see the information prosecutors wanted hidden from Trump’s lawyers.
Trump’s lawyers argued they should be able to see the section 4 motion because the case involved a former president – once the chief classification authority; and in two cases involving terrorists, their lawyers with security clearances had ultimately been able to see some of the government’s motion.
The Trump team also argued that prosecutors had been wrong to suggest section 4 proceedings must occur “ex parte”, here meaning only the government would be involved in the litigation, because the statute suggested it was up to the judge to decide how to proceed.
Cannon wrote in her order that she agreed with Trump that it was up to her to decide whether to proceed ex parte, and at times took on a chastising tone towards prosecutors for suggesting otherwise. But Cannon ultimately decided not to create new precedent and rejected Trump’s motion.
