(CN) — Defense attorneys and prosecutors in the Mar-a-Lago case against Donald Trump are at odds over whether Trump’s co-defendants should be allowed to review classified materials the former president is accused of mishandling after leaving office.
Federal prosecutors argued in a brief filed late Monday that Walt Nauta and Carlos De Oliveira do not need access to the materials, which detail military plans and national defense vulnerabilities, to defend themselves at trial. Nauta’s defense attorneys countered that the Department of Justice was violating their client’s due process rights by withholding evidence.
“Based on the nature of the charges and their inextricable interconnection with the substance of the classified documents, Mr. Nauta’s ‘need to know,’ is unquestionable,” wrote the attorneys from the Florida-based Dadan Law Firm PLLC.
Nauta, a Trump aide, is accused of helping his boss hide dozens of boxes of classified materials at the Florida resort last summer, while a federal grand jury investigated claims the former president had improperly kept the sensitive materials after leaving office.
Along with Carlos De Oliveira, the property manager at Mar-a-Lago, Nauta is accused of conspiring to destroy incriminating security footage at the resort, and later lying to investigators about their involvement in the scheme.
The FBI seized more than 100 documents with classified markings during a search Aug. 8, 2022, at Mar-a-Lago, the indictment states.
Trump was indicted in June on 32 counts of willful retention of national defense information, a crime under the Espionage Act of 1917, among other offenses, while his employees face obstruction-related charges.
The Department of Justice filed a request that same month for a hearing under the Classified Information Procedures Act, a 1980 law that governs the use of classified information in criminal cases.
U.S. District Judge Aileen M. Cannon, a Trump appointee, heard arguments during a two-hour sealed hearing Sept. 12 on the matter. The judge issued orders for securing the materials and preventing leaks, but asked attorneys to file additional briefs addressing the defendants’ document access.
Making its case in Monday's brief, the Department of Justice argued the disparity in charges against Nauta and De Oliveira, compared with Trump, justified restricting them from reviewing the sensitive evidence.
To convict Trump under the Espionage Act, the government will need to convince a jury that the materials seized from the resort contained “national defense information.” It’s a question that can only be answered by reviewing the materials: A classified marking is not proof itself that a document contains such information.
But information contained in the documents is irrelevant, prosecutors say, to proving the charges filed against Nauta and De Oliveira.
“Nauta and De Oliveira are charged with conspiring to hide records from a grand jury — documents with classification markings and Mar-a-Lago security footage — and making false statements about their conduct,” prosecutors wrote. “None of the offenses charged against Nauta or De Oliveira requires proof that any of the documents in this case contained national defense information.”
If for some reason Nauta or De Oliveira needed to review a classified document to assist in their defense, their attorneys could ask the prosecution or judge for permission to share it with them, prosecutors offered.
Stanley Woodward Jr. and Sasha Dadan, defense attorneys for Nauta, argued in their brief that legislators did not intend for defendants to be left in the dark about their case when it passed the Classified Information Procedures Act.
They pointed to a 1980 analysis of the law by Joe Biden, who introduced the bill as a senator. It says confidential information may be disclosed to both the defendant and his defense attorney.
A report issued at the time by the House Judiciary Committee said the act was “not intended to infringe on a defendant’s right to a fair trial or to change the existing rules of evidence and criminal procedure,” according to the defense attorneys’ brief.
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