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Inside Trump's indictment: What the charges mean in classified documents case
04:27 - Source: CNN

Editor’s Note: Harry H. Schneider, Jr., a Seattle attorney, was a member of the team that represented Salim Ahmed Hamdan, Osama bin Laden’s driver, in Hamdan v. Rumsfeld and United States v. Hamdan. The views expressed in this commentary belong to the author. View more opinion at CNN.

CNN  — 

In seeking a postponement in former President Donald Trump’s federal classified documents trial, his attorneys — in a court filing last week — cited a myriad of reasons, from the upcoming 2024 elections to the use of secret information, creating complications for the court.

Harry H. Schneider, Jr.

Given my own experience handling classified material in evidence — I was one of the lawyers who represented Salim Hamdan, the first Guantanamo detainee tried by the United States in the War on Terror — I know how wrong their legal reasoning is. To cite a familiar saying, “That dog won’t hunt,” or their reasons for delay are incredibly weak and should fail.

To begin, Trump’s lawyers argue that the “intersection between the Presidential Records Act and the various criminal statutes” creates challenges that will require additional time because of the “novel, complex and unique legal issues.” That is not so.

First, a document classified as “secret” or “top secret” is confidential and protected from public access regardless of whether it is a presidential record. The fact that some of the classified documents are presidential records is not relevant to a determination of whether they were unlawfully removed, improperly withheld from the National Archives or illegally disseminated. As special prosecutor Jack Smith stated in his response filing, any argument that the Presidential Records Act somehow forms a defense to the charges in the indictment “borders on frivolous.”

Second, Trump’s lawyers have made no effort meet their burden of demonstrating how the issues, even if considered “novel,” are so unique or unprecedented that it is “unreasonable to expect adequate preparation for pretrial proceedings or for the trial itself within the time limits established by this section,” under 18 US Code 316.

The Trump attorneys also raise an issue with the “purportedly classified materials” and call into question whether they have any “impact on national security.” But there is nothing “purported” about whether the documents at issue were classified. They were.

Once classified, they are protected until it is shown that they were declassified. They were not. An audio recording obtained by CNN and referenced in the federal indictment shows Trump knew that he had retained “secret” military information that he had not declassified. According to the transcript of the recording, Trump said, “[A]s president, I could have declassified it. … Now I can’t[.]”

Next, the Trump lawyers urge that the sheer volume of documents produced in discovery is overwhelming and will be difficult to review and analyze in time to be adequately prepared for a potential December 2023 trial, because many are sensitive and cannot be reviewed by document reviewers other than themselves. That’s not the case.

Magistrate Judge Bruce Reinhart has already signed off on a protective order that permits access to document reviewers who Trump’s attorneys hire. Smith noted as much in his filing, writing that “[t]he order specifically authorizes disclosure to ‘persons employed to assist in the defense.’”

Trump’s counsel also contends that the trial should be postponed indefinitely because the court is unlikely to be able to seat an “impartial jury” during the run-up to the 2024 presidential election, when Trump is a highly visible candidate. Yet our system of justice allows the court to employ various tried-and-true methods to ensure that the jurors who hear the case will be fair and objective, and bound to render a verdict that is based on the evidence presented and the instructions given by the trial judge, rather than by public opinion or media coverage.

Perhaps a larger number of potential jurors will have to be summoned because a greater percentage will be excused based on their preexisting views, their exposure to media coverage of the case or their subjective opinions of the presidential candidates or election to come. The court also may use a more detailed juror questionnaire than those commonly used in less newsworthy trials, in order to accelerate the receipt of information that might disqualify some potential jurors.

But Trump’s lawyers rely most heavily on the sensitive content of the classified documents in arguing for a delay. They suggest that procedures utilized to share secret information and classified testimony with the jury will be overly complex and will require a lot of time to manage. While this issue may be unfamiliar to the general public, it is not unusual in our federal courts and it presents no impediment to an orderly and speedy trial.

My familiarity with handling classified material at trial is that it is neither difficult nor time-consuming. When I represented Hamdan, who was apprehended in Afghanistan after 9/11, I saw how capable our courts were of managing classified documents and secret information in evidence, as provided in the Classified Information Procedures Act (CIPA).

Classified documents and secret testimony were utilized in Hamdan’s trial at Guantanamo and in our federal courts prior to trial. And the process for our legal team to obtain the necessary security clearances to view them was not “arduous,” as the Trump attorneys would have the judge believe. In our case, I obtained top-secret clearance in short order after filling out an application and sitting for an interview with two Department of Defense representatives.

Sure, the Trump attorneys will have to review classified information at a sensitive compartmented information facility (SCIF). But we did that without inconvenience or disruption, both in Washington, DC, and at Guantanamo. And the government has volunteered to make classified information available to the Trump attorneys at a SCIF in Florida.

Submitting classified information to the court will require that the Trump attorneys redact sensitive text from public filings and submit it in non-redacted form to the assigned judge in a confidential transmission, as provided in the CIPA. We did that, too, both in federal court and at trial.

Trump’s counsel need not worry that they will be precluded from using classified information and testimony at trial if otherwise relevant and admissible in evidence. The judge presiding over the trial is able to clear the courtroom of anyone without proper security clearances so the jury can hear secret testimony in a closed session, if necessary. We also did that.

Three critical witnesses at Guantanamo gave testimony which would have jeopardized national security if made public. Our trial judge, Navy Captain Keith Allred, closed the courtroom and excused all media and press when those witnesses testified. He then promptly allowed public access once their testimony was completed. Any notes made by the jurors during the closed session were maintained by the court as confidential and classified information, and the jurors were not permitted to take those notes with them when court recessed or adjourned.

The trial court in Trump’s case can appoint a classified information security officer to manage movement and storage of classified information at trial. At Guantanamo, a security officer was present throughout the proceedings, and was able to interrupt testimony mid-sentence if he or she believed the witness was about to jeopardize national security. The procedure was infrequently used and caused only minimal delay.

Finally, Trump’s counsel need not worry that they will be prevented from referring to classified or secret information that they believe exculpates their client from criminal liability when arguing to the jury. Even top-secret classified documents and testimony presented earlier in the trial can be referenced in public courtroom proceedings, if one is careful.

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In our case, in our closing argument to the jury in Hamdan’s trial, my co-counsel said to the jury,  “I want to discuss, as I just said, what is contained in the Defense Exhibits I through Y, 17 documents that you have.  Look at the information Mr. Hamdan provided to the United States when it mattered most… I’m not going to have the government close this courtroom; you know what Mr. Hamdan agreed to do.”

That’s all we needed to say. The jury knew exactly what we were talking about, and no one else needed to know. Hamdan, who had been charged with two criminal counts — conspiracy to commit terror and material support of terrorism — was ultimately acquitted of the former by a military jury, and his conviction on the latter charge was vacated by the District of Columbia Circuit Court of Appeals.

In Trump’s case, rather than complaining about how difficult it is to prepare for a three-week trial, his attorneys should proceed to obtain their necessary security clearances, and let the trial judge manage the handling of classified information, as our trial judge did in our case, and as federal judges do every day around the country in other cases without incident or inconvenience.