HH: Does that question, does that question get decided before they begin to seat a jury? In other words, do the Trump lawyers go in and say “Judge, make a ruling right now that the jury is going to see these documents, because the government has put all the weight on these documents. They’ve convinced the country that Trump put us at risk. They’re going to have to prove the documents put the country at risk, not that the classification existed, but that the documents themselves were dangerous.” Does that get argued and decided before the trial begins?
AM: Yes, and this is the reason why I don’t think they can get the case to trial. So when you are in a situation like this, what applies is what’s known as CIPA, the Classified Information Procedures Act. And it’s a kind of a, I always thought of it, Hugh, as like a pre-trial trial of the trial in the sense that the regular rules of evidence applied. So you know, you don’t get a heightened standard of relevance and probative value just because you’re dealing with classified information. It’s the regular rules applied. But what happens is the government says what classified information it intends to offer in the trial. The defense after getting discovery tells the court what classified evidence it intends to introduce in order to make its defense. And then what has to happen is the court has to rule, especially if the government objects, which it typically does, to how much the defense wants to put in. The court has to rule on what’s relevant and admissible on the regular standards of evidence. And at that point, if the court says that there has to be classified information introduced at the trial because it’s relevant and it helps the defense makes its defense, then the government has a choice to make. Usually, the first round is you try to propose a substitution, which gives the defense the information that they need to make their arguments to the jury, but they withhold the actual classified information. Often, the judge will say that’s not good enough, they have to get the information. And then the way the law works is the Justice Department and the Executive Branch are supreme in the area of classified information. The judge is supreme as to the litigation. So what happens is the Attorney General can order the judge not to allow certain documents to come into the case. The judge then can say okay, fine, but then these counts have to be dismissed, or perhaps even the whole indictment has to be dismissed, because the defense can’t get a fair trial without this information. That takes a long time to play out. Just to give you a quick sense of this, in the Blind Sheik case, for example, we had an issue about Pakistan acting as our cutout in Afghanistan when we were supporting the Mujahideen during the war against the Soviets. I can talk about this now, because it got declassified during the 9/11 Commission hearings, but I wasn’t allowed to talk about it before that. But we had an 18-month litigation, Hugh. And I think by the time we finally got to trial, I read a 9-line stipulation to the jury about what the impact of Pakistan was.
HH: Wow.
AM: It took 18 months to get there.