Last week, the federal judge overseeing former President Trump’s trial in Florida ordered his attorneys to contact the Department of Justice and begin the process of obtaining security clearances.
The news undoubtedly prompted some head-scratching among federal employees and contractors – who know that they cannot self-sponsor for a security clearance and instead require employment with a federal agency or cleared contractor, along with a need-to-know.
As private defense counsel employed by a former president, the attorneys clearly don’t meet the usual criteria for obtaining a security clearance. However, a 1980 federal law called the Classified Information Procedures Act (CIPA) provides for an exception. Under CIPA, private defense attorneys unaffiliated with the government can obtain security clearances if necessary to competently defend their client against a criminal prosecution brought by the government. This is true whether: information the government is using to prosecute the defendant is classified; the government possesses exculpatory classified information (i.e., information that might help the defense, which the government is constitutionally obligated to turn-over); or the defendant seeks to raise classified information as part of his or her defense.
The arrangement raises some thorny questions, like whether denying a defendant’s counsel the necessary security clearance runs afoul of the constitution’s Sixth Amendment right to counsel of choice. But the less...
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