Now that former president Donald Trump has been indicted over his retention of classified documents at Mar-a-Lago, the term “CIPA” is quickly becoming part of the public discourse. CIPA stands for the Classified Information Procedures Act, and it’s a 1980 statute designed to address the discoverability and use of classified information in criminal trials. It will play a critical role in Trump’s prosecution. While there are several helpful articles available that provide in-depth explanations of CIPA, especially this one recently published on Just Security, it remains a somewhat complicated statute (even though it’s not lengthy). For those who don’t have time for a CIPA deep-dive (and even those who do), the following is an attempt to summarize most of what the more casual observer needs to know about the statute – in other words, the CIPA TLDR. We’ve even provided a helpful chart at the end that encapsulates the process.
The CIPA Funnel: Many CIPA overviews present the statute as a mechanism for curtailing the practice of “graymail,” whereby criminal defendants can threaten to disclose classified information at trial in an attempt to get the government to drop the charges. While that’s an important function, it’s only part of the story. As a litigation tool, the best way to think of CIPA is as a pre-trial filtering process for disputes involving classified information.
All criminal trials have litigation over the use, relevance, and admissibility of information. Most of this litigation occurs shortly before trial, in the form of motions “in limine,” or else during the trial itself. One of the primary purposes of CIPA is to frontload this process earlier in the proceedings. Due to the complexities involving classified information, both sides need to understand how such information will be used at trial well in advance, so they have time to adjust their strategies accordingly. CIPA provides for just that. In doing so, CIPA provides a mechanism for gradually narrowing the universe of classified information at issue, with that universe becoming smaller at each progressive step. This narrowing process helps the court and parties focus on more particularized disputes, while at the same time lessening the likelihood of “graymail” because the scope of information at issue is smaller. The “CIPA funnel” chart below provides a visual representation of that process. Here’s a high-level summary of how it works.
The “Relevant and Helpful” Standard: The first narrowing comes not from the CIPA statute, but from case law. Normally in criminal cases, information that is relevant to the preparation of a defense is discoverable. But under a series of cases, the most well-known of which is United States v. Yunis (DC Circuit), courts have held that if the information is classified, it must be both relevant and helpful to the defense to be discoverable, due to its highly-sensitive nature. The courts adopted the “relevant and helpful” standard that had been recognized by the Supreme Court for discovery of information involving informants, which also warranted heighted protections due to its sensitive nature. For example, if an agency conducted a damage assessment regarding the defendant’s alleged compromise of classified information, the findings of assessment would certainly be relevant to the defense. But if the assessment (which itself would be highly classified) determined that the compromise was extremely harmful, it would not be both relevant and helpful to the defense; if anything, it would be inculpatory, and therefore the court could authorize prosecutors to withhold it from discovery.
Section 4: Section 4 of CIPA is the first opportunity the government gets to apply this narrowing – first by excluding classified information that is not relevant and helpful to the defense, and then by proposing additional protections for the classified information that is relevant and helpful.
First, in a CIPA Section 4 motion, the Justice Department may ask the court to “delete” from discovery classified information that is not relevant and helpful to the defense, relying on a declaration from a classification expert that explains why the information is classified. This could entail withholding some documents in their entirety, while redacting information from others.
Second, the prosecutors may ask the court to permit either substitutions or summaries of classified information that is relevant and helpful, but still warrants extra protections. A substitution could be inserting “Country A” instead of the name of the country, or “fall 2022” instead of a specific date. A summary could involve drafting a summary of a CIA cable that omits some of the more sensitive details from the document, while still providing the discoverable information to the defense. Alternatively, the summary could be a “statement admitting relevant facts that the classified information would tend to prove.” In either case, the court must find that the substitutions or summaries put the defendant in the same position in terms of being able to defend their case. Typically the omitted details are immaterial to the defense. At the end of this process, a narrower universe of information is provided to the defense in discovery than would have been without application of CIPA, while still allowing individuals to adequately defend themselves.
Section 5: CIPA Section 5 is another critical part of the filtering process. Here, the defendant is required to provide the Justice Department with a written notice of the classified information it intends to use at trial, relying both on classified information that the government provided in discovery and classified information in the defendant’s head. This typically will be a much narrower universe of information than the government provided in discovery. Almost inevitably, the government will ask the court to require the defendant to provide a more specific notice – the narrowing continues.
Section 10: In Espionage Act prosecutions and others where the charges relate to classified information, Section 10 of CIPA provides that the government must provide notice to the defendant “of the portions of the material that it reasonably expects to rely upon to establish the national defense or classified information element of the offense.” Think of this notice as akin to CIPA Section 5, but in the inverse. CIPA does not define the timing of this notice, but it should come sometime before Section 6(a) proceedings, as it helps define what is “relevant” for the trial. This requirement is unique to Espionage Act and similar prosecutions, so we have not included it in the funnel chart below, but it is yet another potential mechanism for narrowing the scope of classified information at issue in the case.
Sections 6(a) and 6(c): CIPA Section 6 is the final step in the narrowing process, this time focused on preparation for how classified information will be used at trial. It has two distinct parts. First, under Section 6(a), the parties litigate the use, relevance, and admissibility of classified information at trial – issues that are normally resolved via motions in limine or during the trial itself. Once those determinations are made, the government will utilize Section 6(c) to propose additional ways to protect classified information at trial, which may include substitutions, redactions, and summaries for trial exhibits, as well as additional protections against classified information being disclosed during trial testimony (such as the Silent Witness Rule). Once again, these tools will further narrow the scope of classified information that will be disclosed at trial (if any is disclosed at all), while providing both parties with advance notice so they can prepare their strategies accordingly.
Interlocutory Appeal: Finally, while not part of the funnel chart, CIPA Section 7 provides the government with the ability to seek expedited interlocutory appeal of adverse court rulings involving the disclosure of classified information (including to the defense in discovery). For non-classified information, the government often cannot appeal adverse pre-trial rulings, which are largely left to the discretion of the trial court. CIPA Section 7 thus provides a unique and critical right for the government. In essence, if the funnel starts to break because of a ruling from the trial court, the Justice Department can attempt to fix it with the court of appeals. Alternatively, instead of appealing an adverse ruling, the government could decline to either produce or rely upon the classified information at issue, but then it runs the risk of having a sanction imposed by the court (which it could then appeal).
And with that introduction, we present to you – the CIPA funnel: