Preet Bharara:
Hey folks, we’re back this week with the third episode of Stay Tuned in Brief, and our focus for now remains on the fast developing news of the Trump documents investigation. As you might imagine, questions have been raised about how prosecutors, if there’s going to be a trial at some point, can prove the materials Trump refused to surrender were either classified or national defense information without making them public. As you might imagine, sometimes in our court system defendants can take advantage of the problem, known as graymail, in cases where classified information is an issue, arguing that the government must disclose the very documents it needs to keep secret for reasons of national security. So there’s a tension there.

Preet Bharara:
To address the issue, Congress enacted a law called CIPA, the Classified Information Procedures Act, in 1980, which tries to balance these issues. The defendant’s interest in a fair trial with the government’s interest in guarding nuclear secrets, sources and methods, and other sensitive information. So we have another very smart person to come explain this to us. She is former acting Assistant Attorney General for the National Security Division, a visiting professor at Georgetown Law School, and the executive director of the Institute for Constitutional Advocacy and Protection, Mary McCord.

Preet Bharara:
Mary, welcome to Stay Tuned in Brief.

Mary McCord:
Thank you for having me, Preet.

Preet Bharara:
It’s good to have you. I know you deal with these issues inside of government, outside of government, and you’re as good an expert as I know on these subjects. Just at the outset, could you just explain to folks, generally, how we in this country resolve the tension between two, I think, legitimate principles. On the one hand, court proceedings are supposed to be open and transparent if there’s a trial, particularly a criminal trial. And on the other hand, if the proceeding happens to involve, because of the nature of the charge or proof in the case, classified or other very sensitive information, how do you reconcile the need for openness with the need for secrecy?

Mary McCord:
Well, it’s a great question. And it actually, there’s a question that even precedes that one, which is how does the government make decisions about whether even to prosecute a case? When the prosecution of that case will require it in order to prove that something is national defense information, will require it to reveal that information to the jury, and to the defendant, and of course to the judge. And so, as you indicated that tension, I think of it as this inverse relationship whereby the most sensitive information, the stuff that you would think we would most want to prosecute if it were mishandled because of the serious threat to national security, oftentimes instead means that’s the case that might be the least likely to be prosecuted because the-

Preet Bharara:
Is that a paradox?

Mary McCord:
Well, it kind of is. Because the more sensitive it is, for the government to prosecute, they have to essentially be acknowledging that this really is national defense information. It really would cause damage, even up to exceptionally grave damage, to the national security of the United States. And so that’s one reason that sometimes very serious matters do not end up being prosecuted.

Mary McCord:
But when they are, there are procedures, such as those under CIPA that you referred to, which at least allow for a process for adjudicating pre-trial what types of classified information the defense might be entitled to in order to get a fair trial. And even sometimes substitute summaries, or make other substitutions for the raw classified information, in order to ensure that right to a fair trial. And that law, CIPA, was passed in order to avoid the graymail problem, where at trial or in public, in front of a jury, in a public open courtroom, the defense would introduce classified information, introduce a line of questioning that provoked the revealing of classified information, that kind of thing that would be of great harm to the national security of the US.

Preet Bharara:
You said something interesting a few minutes ago about the decision to bring a charge in the first place. You and I both have experience in this. And I just want you to elaborate on it and explain to folks that there are actual legitimate, righteous criminal prosecutions that the government decides not to bring because it would necessitate the harm that you described to national security. So one, how do you hold people accountable when that’s the case? And two, explain a little bit, because people might find it interesting what that debate and fight is like and who the participants are in making the decision to walk away from a case because it’s so sensitive.

Mary McCord:
Sure. So when there has been a mishandling of classified information, that might be a leak, like a leak to media or to someone who’s not authorized to have it. It might actually be the transmission to a foreign government or a foreign agent of national security information. That will get reported to the Department of Justice and to other national security agencies in the US government.

Mary McCord:
And as part of the investigation, an investigation will be launched to determine the source of that leak or that mishandling, etc. But before any type of prosecutorial decision gets made about whether to actually charge a crime, even assuming there’s evidence sufficient to establish a crime such as a 793 offense, which is one of the crimes that is mentioned in the search warrant from Mar-a-Lago. Before that decision gets made, the Department of Justice has to consult with the intelligence agencies, and particularly the ones who actually own that classified information.

Mary McCord:
So what that means is, intelligence is collected by various different agencies, Department of Defense through the National Security Agency and others, the CIA, the FBI, foreign governments share national security information with us, or national defense information with us. And so, before you can use it, the department has to go and engage with that other agency to basically say, “Will you let us use this? What would you let us do?” And they sometimes say, “No.”

Preet Bharara:
No. They sometimes say, and it’s not just the foreign folks, and maybe-

Mary McCord:
That’s right.

Preet Bharara:
Maybe you can talk about this a little bit. Because in my experience, going back to being a US Attorney in 2009, but also being a line prosecutor working on terrorism cases just after 9/11, that augured in a season of cases that really required, more often than in prior years and prior decades, the admission of sensitive information, classified information. And my recollection is there was a lot of back and forth between the Department of Justice and the intelligence community, particularly the CIA, about what could or could not be used. And the agency sometimes had to get a crash course from prosecutors in my office and in Washington about how protective that CIPA law might be. Do you think there’s been a better trend towards using that law and being able to bring classified information into the courtroom?

Mary McCord:
I do think that, since 9/11 in particular, and since that wall came down between intelligence and law enforcement in terms of the sharing of information, and that was quite purposefully so that we wouldn’t have gaps that lead to things like 9/11. I do think since then the intelligence community has become more familiar with the processes that are available in the course of a criminal prosecution to protect national security interests.

Mary McCord:
And so I certainly in my own experience, like yours I’m sure, Preet, did see numerous cases where we availed ourselves, the Justice Department, of CIPA’s procedures. I will tell you also that sometimes what we’ve done is negotiate with the intelligence agency in advance that, look, we will try our best to protect everything. We will use CIPA’s procedures, these procedures of going to the court and saying, “Here are the things that we think, in fairness, the defendant’s entitled to, the defendant has requested. Here’s how we would try to substitute those. Here’s how we would try to protect national security while also protecting the defendant’s constitutional rights.” And when we would negotiate with the intelligence agency, if it gets to point X, this red line of the intelligence agency, and the agency won’t let us go any further than that, and the court demands that we go further than that, we will litigate like heck. But if we lose that in the court, we won’t bring the case.

Mary McCord:
And sometimes you try to establish those parameters in advance so that you… Partly just for a resource. For resources to not have a case that’s at least proceeding to a certain extent in the public eye, you’ve returned an indictment, things are being published, and it’s not a good look to then drop it midstream. So you want to have figured out, what is the likelihood where we’re actually going to get all the way to trial on this?

Preet Bharara:
So everyone is thinking about the sensitivities far in advance. But so the decision maker, let’s suppose that the controversy is between the Department of Justice, who wants to bring a case, but the sensitive and classified information is owned by the agency, the CIA. And they’re adamantly imposed to revealing that information, even availing themselves with the Classified Information Procedures Act. Do they have veto power?

Mary McCord:
Well, I never really got into a situation where I would call it the veto. I would call the product of negotiation. And frankly, the Department of Justice at some point also understanding being on the same page. And understanding as much as we really wanted to prosecute something, sometimes they convince us also that there’s certain things we just can’t do and still protect national security. So I guess in some ways you might think of it as veto power, but the national security division is also very interested in protecting national security, as are the US Attorneys. And so at a certain point you recognize, okay, that this really would be too damaging.

Mary McCord:
Another thing that can happen, assuming you’ve negotiated the pretrial space, and satisfied all of the discovery obligations, and obligations under Brady, those are the obligations of the government to disclose any potentially inculpatory or exculpatory evidence that might be material to the defense. Supposing you’ve negotiated all that, you still have to prove in front of a jury that the information really is national defense information. And one other thing that CIPA provides is that, even though you’re going to have to show it to the jury in order to establish that it really is national defense information, it doesn’t lose its classification status automatically because of that.

Mary McCord:
And so there are cases where you can ask the court to close the courtroom to the public during those particular parts of the trial, not the whole trial, but during those particular parts of the trial where this national defense information will be revealed so that it is only being revealed to the jury, the defendant and defense counsel, and the judge. Which gets us back to the tension we started with, which is that the public doesn’t then get to have a full understanding of exactly what it is. But it is something of a compromise, and it’s done only where the government’s interests are most compelling. And that is one way of still protecting it. And then the intelligence community, it still retains its classified status, and the intelligence community can sometimes feel a little bit more comfortable in the hopes that jurors will understand that they really shouldn’t go out and blab this stuff to the world.

Preet Bharara:
So before we conclude, let’s apply these issues and this information to the current controversy, the issue with respect to the sensitive and classified documents that were seized at Mar-a-Lago. One, and I hate this question, but I get to ask questions on this program, so I’ll ask you. Do you have any view on the likelihood of an indictment against the former President with respect to this information?

Mary McCord:
So I really don’t, because even assuming evidence sufficient to prove every element of the crime beyond a reasonable doubt, a 793 offense. Let’s put aside the other two offenses for a moment. You still have obviously these negotiations with the intelligence community. There’s lots of documents, lots of choices that would appear. And it could be that some are far too sensitive to use at trial. And it could be that the ones that the intelligence community is comfortable using don’t seem that important. They wouldn’t be classified if they weren’t important, but-

Preet Bharara:
That’s another paradox. So you want to proceed with evidence in the case with respect to the stuff that’s not so sensitive to save the sensitive stuff. But then the jury, if there was one convened and there was a trial, doesn’t get to have the benefit of understanding the seriousness of the violation because you’re trying to keep the more sensitive stuff out. Is that a fair concern?

Mary McCord:
Yes, that’s exactly right. So my point being, that will go into the decision making of the government, and even assuming they can come to an agreement with the intelligence community. And then there’s, of course, all the prudential concerns that many commentators have been talking about, which is what kind of precedent this establishes. And we can balance out the need for accountability, particularly for a former President who is actually not taking any responsibility for anything, and had doubled down on his claims of election fraud, etc., and seems to be a real threat to democracy. Balancing that against the precedent for potential politicization going forward of cases against former presidents.

Mary McCord:
So it’s a tough call for Attorney General Merrick Garland. And those considerations would also apply to the other possible offenses, like the obstruction of justice or the mishandling of presidential records. And there could be other offenses as well that would be considered. I do think, to avoid some of these problems we’ve been talking about regarding revealing classified information, it is important to recognize there are other possible offenses that would not necessarily require revealing all of that.

Preet Bharara:
Would there be a possibility, and these are obviously unique parties here when you’re talking about the former President of the United States, could you see an accommodation in which the defense, in this case the hypothetical former President, would stipulate that the material that was retained at Mar-a-Lago had a certain level of sensitivity so that they would not be prejudiced by the bringing in of more details about that? Because with respect to some of these statutes, including the one you mentioned, actually having classified information is not necessary to prove the crime. So apart from CIPA, apart from statutory protections, do you ever see a case in which everyone agrees, because it’s in everyone’s interest, to just agree about what the information was and how sensitive it was, but without revealing its particulars?

Mary McCord:
Well, in most cases I would say the defense would not agree to that because they really want to engage in this graymail. They really would prefer to put the department to the Hobson’s choice of having to decide to probably just drop the case rather than risk the threat to national security. Here, like you said-

Preet Bharara:
It’s a game of chicken. It’s a game of chicken a little bit.

Mary McCord:
Totally, right? And here, of course, it could also be damaging to the former President politically if some of this information were to be introduced at trial which really shows really significant and sensitive information that would make him look bad. Look worse than maybe he otherwise looks. But it’s impossible for me to ever predict what former President Trump will do because all the norms, all of my years, and I’d be curious about yours, Preet, of both at the US Attorney’s Office and a main justice in the National Security Division, we had certain things we could predict in terms of behavior of defendants. And he’s just a completely different animal.

Preet Bharara:
A final question, anything else you can say about your sense of how deeply sensitive these documents are from what we know about the markings and what’s become public?

Mary McCord:
Well, we have almost every type of special access program and secured compartmentalized information represented, it appears, just by reading the unredacted portions of the search warrant and taking a glance at the photograph that was in exhibit two, the government’s filing on Tuesday night. I don’t know what the topics of those are, but what I do know is we’re talking about confidential human sources. We’re talking about intelligence collection methods through signals intelligence and other intercepts. And so we’re talking about some of our most sensitive programs.

Mary McCord:
And its topic, subject matter wise, it could be everything from straight up counterintelligence information, to terrorism information, to information about our most protected crown jewels: technology, financial systems, communication systems, mass transits. Things that we don’t share publicly because they’re so sensitive. So there’s so many things that this could… And obviously I didn’t even mention military movements and things like that. But what I know is the sources and methods aspect of this is clearly very, very sensitive given the markings we’ve seen on the cover sheets which have been revealed in the unredacted portions of the affidavit.

Preet Bharara:
This is supposed to be in brief, so I have to stop asking you questions now, before you reveal some classified information.

Mary McCord:
Right.

Preet Bharara:
Mary McCord, thanks for being with us. It’s good to talk to you after so long.

Mary McCord:
It’s my pleasure, Preet.

Preet Bharara:
If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me at @preetbharara with the hashtag #AskPreet, or you can call and leave me a message at 669-247-7338. That’s 669-24-PREET. Or you can send an email to letters@cafe.com.

Preet Bharara:
Stay Tuned is presented by CAFE and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The senior producer is Adam Waller. The editorial producers are Sam Ozer Staton and Noah Azulai. The audio producer is Nat Wiener. And the CAFE team is Matthew Billy, David Kurlander, Jake Kaplan, Namita Shah, and Claudia Hernández. Our music is by Andrew Dost. I’m your host, Preet Bharara. Stay tuned.