Prosecutors identify holdup in Mar-a-Lago trial: security clearance for defense lawyers

June 25, 2023

In a new filing on Friday, prosecutors in the special counsel’s case against former president Trump for unlawful retention of documents pointed to one factor that will make the trial date slip — some of the defendants’ lawyers have not yet applied for a security clearance.

The judge assigned to the case, Aileen Cannon, had set a tentative date for trial to begin on August 14 of this year. Now, Jay Bratt, counselor to special counsel Jack Smith, has proposed a new aggressive schedule that incorporates steps needed for production of classified evidence, which allows the trial to begin on December 11 — a slippage of four months. National security journalist Marcy Wheeler points out on Twitter that this schedule would mean the trial is done before the first Republican primaries start.

However, the date is not entirely in control of the government; it also hinges on how promptly the defense attorneys perform the steps needed from them. So far, Bratt points out in the filing, some attorneys for Trump and Waltine Nauta, Trump’s valet also charged in the case, have not applied for security clearance — required for them to view classified evidence.

The procedures for the use of classified material in a trial are governed by the Classified Information Production Act (CIPA). Bratt, who leads the justice department’s counterintelligence division, has extensive experience in CIPA procedures, which allow the government to protect classified information, while at the same time allowing the defense their Sixth Amendment right to view the evidence that will be used against them at trial.

A key step will be for the defense counsel to obtain security clearance. In the filing from Friday, Bratt delineates two levels of clearance: an interim clearance, which he states will take at most 48 hours unless there are “complicating circumstances,” for viewing the vast majority of classified evidence; and a full clearance, that could take up to 60 days, for some select documents that contain “restricted compartments.”

Bratt points out that as of yesterday, all defense attorneys have not accomplished the first step of obtaining clearance: filling out an SF-86 form.

The delay could have been avoided had Trump been able to hire an attorney with national security experience and a security clearance. However, several outlets reported on the difficulty he was having finding such representation.

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