Among the criminal charges now facing the former president of the United States, the most extraordinary are 31 counts of violating the Espionage Act, a century-old law prohibiting the unlawful retention of “information relating to the national defense.” Barring a guilty plea — the more common resolution in a case as strong as this — those charges will eventually go before a jury.
In one sense, the indictment of Donald Trump on charges of violating the Espionage Act is just like the other cases the government has brought since the act’s adoption during World War I. The statute does not simply prohibit the retention of any document marked “classified.” It requires the government to prove beyond a reasonable doubt that the information contained in the documents could, if disclosed, pose a threat to U.S. national security.
Whether the documents do pose such a threat is what the courts call a question of fact — meaning that as the case goes forward, this significant question of national security will rest squarely in the hands of a dozen ordinary Florida citizens. If the government doesn’t persuade them, Mr. Trump will be found not guilty.
It is hard to imagine a case that places more pressure on the functioning of the jury — or that more dramatically illustrates its unique value. The case against Mr. Trump does not just put a question of national security in the hands of the jury. It puts in its hands a case that is unprecedented, involving a former — and perhaps future — leader of the nation. The security policy stakes are high. The political stakes may be higher.
The jury system’s constitutional authority makes it, at its best, an essential check on government overreach. In a case like this, its democratic legitimacy also gives it a better chance than any other governing institution to render a judgment that can withstand the political firestorm ahead.
Leaving such a consequential judgment up to ordinary citizens may seem jarring in a political culture accustomed to assuming national security is best reserved to the most expert, most secretive corridors of military and intelligence agencies in and around Washington. Jury trials are, after all, the opposite of this. Neither juries nor judges — especially in courts outside Washington — are known for their national security expertise. And like any jurors, those in Mr. Trump’s case will bring with them their own partisan political views that might shape their interpretation of evidence. Jury decision-making is never without risk, but rarely more so than here.
Jury trials are also necessarily public. The Constitution gives every defendant the right to confront the evidence against him, and for juries to have any basis for deciding the case, they generally have to see that evidence as well. This creates obvious problems when the key evidence against the defendant involves documents that the government argues should never see the light of day.
The indictment unsealed on Friday lists government records describing American nuclear and other weapons capabilities, “potential vulnerabilities of the United States and its allies to military attack,” and U.S. plans for potential response to a foreign attack. This information goes to the heart of the nation’s ability to defend itself. They are documents of the very highest sensitivity.
After the Sept. 11 attacks, courts became especially adept at protecting sensitive information even while sharing access to it with the defense and the jury. The Classified Information Procedures Act proved an invaluable tool, for example, in the prosecutions stemming from the 1998 bombings of U.S. embassies in Africa, in which classified information, including from foreign intelligence services, was central. With the court’s approval, prosecutors presented redacted documents, drew up summaries and relied on protective orders to ensure terrorism trials did not compromise sources and methods. Juries still found enough information to assess the charges, and in many of those cases, they voted to convict.
But negotiating those accommodations, which must happen before the trial, can take time — time that in this case brings us ever closer to the 2024 election in which the defendant is now a leading candidate.
If the judge says no to compromises like summarizing key documents, the prosecution might decide that some are simply too complex or too sensitive to put at issue in the case. Of course, the more sensitive the document in Mr. Trump’s possession, the more it might tend to show that his actions put the country at risk. But the government may have to make that choice, and quickly, if it hopes to bring the case to resolution before the defendant has the chance to be elected president and appoint his own attorney general again. The jury would then be left to reach its verdict without access to what might be the government’s strongest evidence.
Despite all the challenges, the framers of the Constitution never doubted that national security crimes belonged in front of juries. The original national security crime, treason, is the only offense expressly defined in the Constitution itself, and it has involved juries in deciding, among other things, issues as complex as whether a defendant engaged in conduct that counts as giving “aid and comfort” to our enemies.
Indeed, the framers saw the jury’s role as essential. The British government had used national security charges to silence its political opponents throughout the Colonies. In this nation’s new democracy, citizen juries would stand as an essential bulwark against that kind of abuse.
Mr. Trump has not been charged with treason. But all prosecutions of this kind carry special dangers of government overreach. Ordinary citizens remain the most democratically legitimate way of stopping it in its tracks.
That fact gives the jury in this case a uniquely authoritative voice. Mr. Trump’s supporters argue vociferously that the prosecution of a current presidential candidate by an administration of the opposing party could be motivated only by politics and revenge. However unjustified, these beliefs matter. They matter because the justice system cannot function unless most Americans view it as a legitimate arbiter of social disputes.
Nothing that the current president or attorney general can say will resolve such doubts. For seeing justice done and for preserving the public’s democratic faith, the citizens of Florida are the best chance we’ve got.
Deborah Pearlstein is a professor of law and the co-director of the Floersheimer Center for Constitutional Democracy at Cardozo Law School.
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