Lawyers for Donald Trump asked a federal judge on Wednesday to approve the re-establishment of an ultra-secure facility at his Mar-a-Lago club to review classified documents produced to him in discovery, an audacious request without precedent in national security cases.
The request essentially would give Trump the freedom to discuss and review the same classified documents he has been charged with illegally retaining in the same location where the alleged crimes took place.
Trump’s lawyers suggested the re-establishment of a sensitive compartmented information facility, often called a “Scif”, at Mar-a-Lago in an 11-page filing that argued Trump’s schedule and security requirements made it impossible for him to make regular trips to such a facility at a courthouse.
The request also left open the possibility for Trump to review classified documents at “a previously approved facility… near his residence” in addition to Mar-a-Lago.
The Scif at Mar-a-Lago that existed during the Trump presidency was removed after Trump left office in January 2021. Although the case has elements that are novel, reconstructing a Scif for a private citizen because of their former office – regardless of the location – would be unprecedented.
The filing, submitted to the US district court judge Aileen Cannon, was the latest twist in the back-and-forth negotiation between Trump and prosecutors in the office of special counsel Jack Smith over the protective order governing the use of what gets turned over in discovery.
Since Trump was charged with retaining national security materials, including US nuclear secrets and plans for US retaliation in the event of an attack, his case will be tried according to the time-consuming steps laid out in the Classified Information Procedures Act, or Cipa.
The rules require Cannon, under Cipa section 3, to issue a protective order before prosecutors can start the discovery process whereby they turn over to the defense all of the materials they intend to use at trial, just like in any other criminal case.
According to the rules, Trump’s lawyers can challenge the protective order and ask the judge to extend access to Trump himself. Last month, Trump did ask to be able to review the classified discovery materials himself, and prosecutors agreed to his request.
The remaining sticking point, according to an earlier filing by prosecutors, has been where Trump will be allowed to review those materials.
Trump had sought permission to discuss the classified documents with his lawyers at both his Bedminster club in New Jersey, where he spends his summers, and his Mar-a-Lago club in Florida, where the indictment against him says he hoarded the national security papers.
But prosecutors objected to the final request, noting that they were unaware of any previous case where defendants were allowed to discuss classified information in a private residence and that it was inconsistent with the law.
“There is no basis for the defendant’s request,” prosecutors wrote last month. “It is particularly striking that he seeks permission to do so in the very location at which he is charged with wilfully retaining the documents charged in this case.”
