Don’t let Trump ‘graymail’ his way out from under the Espionage Act

For most of his life, Donald Trump appeared to evade justice by using a combination of bluster, economic intimidation and legal feints. Another legal stratagem may rescue him from his latest exposure for grossly mishandling government secrets: “graymail.”

Graymail was coined to describe a tactic used by defendants in cases in which national security information is at issue: The defendant dares the government to proceed, threatening to insist that the raw information the government wants to protect must be disclosed in court, thus inflicting the very damage to national security that the government wants to avoid.

Sometimes this brazen tactic works. But it may not work for Trump if he is ever charged with a crime in connection with the search.

When U.S. Magistrate Judge Bruce Reinhart released the search warrant for Trump’s residence at Mar-a-Lago, many observers reacted instinctively, saying this at last could be a rap that Trump can’t beat. The warrant showed that the government was investigating a variety of potential federal crimes involving alleged mishandling of national security information, and the inventory of materials seized seemed to demonstrate that Trump actually had been concealing the kind of information that he was not permitted to have. Additional reporting revealed that both the National Archives and a federal grand jury issuing subpoenas had been trying for months to retrieve the material. That seemed to be about as clear-cut as any of the various abuses that have been attributed to Trump over his career.

But what may seem clear to an objective observer has rarely been sufficient to keep Trump from skating through various stages of legal jeopardy.

In some ways, Trump is a modern-day legal Houdini. From bankruptcies to allegedly fraudulent business deals and charities, to alleged racial discrimination in housing and allegations of sexual assault, Trump successfully sidesteps them all, engaging in massive counterattacks, legal delay and financial settlements. And that was before he was elected president.

After his election, Trump avoided responsibility for nearly a dozen apparent incidents of obstruction of justice in the Russian-influence investigation, thanks to the deferential passivity of special counsel Robert Mueller. Adding to his unique trophy case as the nation’s “Teflon Don,” Trump successfully relied on partisan enablers to shield him from two impeachments.

Which brings him to the seeming predicament that he now confronts in the aftermath of the Mar-a-Lago search and seizure. Trump already initiated the first phase of his customary strategy, going on the offense in order to throw off balance the forces pursuing him. He and his proxies issued statements characterizing the search as a “siege,” an “assault” and a “break-in.” He filed a lawsuit in South Florida asking the federal court to appoint a “special master” to take control of the seized documents and return “his” property to him. All of which is to distract both the prosecutors and the public and enhance Trump’s strategic theme that he is the real victim.

But Trump has a sharper arrow in his defense quiver — the graymail defense: The same facts that appear to make his culpability so clear would make it difficult to succeed in prosecuting him.

The graymail problem arises because, in any criminal prosecution, the government must prove as a fact that the information that Trump refused to surrender constituted “national defense information” that any reasonable person would realize could injure the country if disclosed.

The government’s burden to prove this crucial element of the crime was used for years as an effective device for discouraging the government from pursuing even hardcore espionage cases, as well as the kinds of crimes that Trump apparently committed.

The government must demonstrate that disclosure of the information would be at least “potentially damaging” to the United States or advantageous to a foreign government. Espionage Act defendants often argued that, since the jury has to be persuaded about the seriousness of the danger posed by the information, the constitutional rules of evidence require that the information be displayed in open court.

When I was asked to join Watergate special prosecutor Archibald Cox as his counsel, I was serving as deputy solicitor general for criminal and national security matters. I was familiar with this problem. This issue eventually arose during the Watergate investigations because some of the so-called White House plumbers had broken into the office of the psychiatrist consulted by Daniel Ellsberg, the former Defense Department official who had leaked the Pentagon Papers to The Washington Post and The New York Times. Lawyers for the men tried to forestall prosecution for invading the psychiatrist’s civil rights, arguing that the plumbers were looking to see whether Ellsberg had disclosed such highly sensitive information as the government’s SIOPs — nuclear targeting strategies — and that they would insist on having us produce the information in open court in order to allow them to explain their motives.

We were able to sidestep this graymail defense by developing an alternative evidentiary approach, which I subsequently urged Congress to codify. After two years of hearings, Congress enacted the Classified Information Procedures Act (CIPA) in 1980. The statute is carefully designed to balance the defendant’s interest in a fair trial in matters involving national defense information and the public’s compelling interest in protecting nuclear secrets and intelligence sources and methods. Among other techniques, it allows federal trial judges to craft accurate descriptions of the types of information at issue without actually disclosing the detailed information itself.

Over the past few decades, this statute has worked reasonably well, although not always. The Guantanamo prisoners case is an example of a situation in which the court determined that the CIPA mechanisms would not work, because information about the alleged terrorists’ activity had to be made available in raw form. Defendants with their backs to the wall, aided by clever and imaginative lawyers, are still able to develop arguments that nothing short of full disclosure of the secrets themselves will be sufficient to give the jury a fair picture of the accused’s conduct.

It remains to be seen whether the statutory reform will allow the Justice Department to override any attempt by Trump to graymail his way out of another alleged flouting of the rule of law.

Given Trump’s track record, he just might escape again.

Philip Allen Lacovara was deputy solicitor general of the United States for criminal and national security matters, counsel to the Watergate special prosecutor and president of the District of Columbia Bar.