re: Fed Prosecutors allegedly informed DJT that he is Criminal Target, likely to be indicted

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It never says classified or declassified in the statute I quoted.

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Now you're getting it.

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As noted above, the statute does not mention “classified” information. Rather, it refers to documents and other material, or information “relating to the national defense.” That phrase has its roots in the original Espionage Act, which was enacted before the system of classification existed.

This type of information is generally referred to as NDI. NDI is not defined in any statute, but courts have described it as information that relates to national defense, construed broadly, and that is “closely held” by the government—in other words, information that the government has taken steps to protect from public disclosure. The Fourth Circuit and some other courts add the requirement that unauthorized disclosure of NDI could potentially harm the United States. See, e.g., United States v. Morison, 844 F.2d 1057, 1071-72 (4th Cir. 1988).

The definition of NDI is very similar to the criteria for classifying information, but while the decision of whether to classify information is a function of the Executive Branch, the question of whether information is NDI is reserved for the trier of fact at trial. In a Section 793(e) prosecution, the government must therefore prove beyond a reasonable doubt that the information underlying the charge meets the NDI definition. In other words, proving that information is classified can largely consist of explaining that the government kept national security information closely held, but proving that it is NDI requires prosecutors to present evidence of why.

Critically, not just any retention of NDI is illegal. Section 793(e) only punishes a defendant who unlawfully retains NDI “willfully.” Willful retention is not accidental, negligent, or reckless. Rather, a defendant only retains NDI willfully if he or she knows he or she possesses it and knows that such possession is prohibited due to the nature of the information. See, e.g., United States v. Hitselberger, 991 F. Supp.2d 101, 106-07 (D. D.C. 2013).

Willfulness is one of the most difficult culpable mental states for a prosecutor to prove and, as with any element of a crime, prosecutors must prove it beyond a reasonable doubt. Any argument that Section 793(e) punishes administrative errors or carelessness is therefore meritless.

The fact that information is classified does not prove that it is NDI. To be sure, because it is illegal to disclose classified information to the public or to an unauthorized recipient, the fact that information is classified can help prove that it meets the “closely held” prong of the NDI definition. A defendant’s training in the handling of classified information and standard markings on classified documents can help establish willfulness. But a jury may not find that information is NDI solely because it is classified. Instead, the government must prove the relationship of the NDI to national defense and, in some courts, the potential harm that could result from its disclosure.

It is therefore possible that information could be classified by the Executive Branch but not qualify as NDI to a trier of fact. It is also possible that information related to national defense that the government safeguards through a means other than formal classification could be NDI—but prosecutors would still have to prove the willfulness requirement of Section 793(e) to obtain a conviction.

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A newer statute, Section 1924, which Congress recently upgraded from a misdemeanor to a felony, incorporates a classification element instead of NDI. Arguably, to convict a defendant under Section 1924, prosecutors would only need to prove that the government had classified the information at issue, without having to prove substantively how the information related to national security and perhaps without even revealing the information to a jury—although this has not been tested and in any event might not be an effective trial strategy. In any event, Section 1924 in some ways reads as a modern version of Section 793(e). It applies only to U.S. government officers, employees, contractors, and consultants who obtain classified documents or materials, as defined in Executive Order 13526.

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LINK

The DOJ will say at trial and will have witnesses that they are classified. If Trump wants to claim he declassified them, then he will have to testify to that opening him up to cross examination. That’s the issue for Trump. He will have to testify to say he declassified them. That’s a huge issue for him.

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Good luck getting a jury to buy the argument that he knew there was a process and had used it before, but he just happened on these documents to tell anyone. Asking the jury to believe that is going to be really difficult to do. Additionally, if he told no one and has no proof, then it is just his word. The only way he gets to say that word is to testify. Do you think he’s willing to submit himself to cross examination?

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It doesn’t matter what the jury thinks. It’s law. SCOTUS will strike down anything a DC jury decides in this case.

Garland is ignoring the Presidential Records Act.

More evidence of a war on those who don’t bow to the Deep State. frick the Democrats and their RINO collaborators. Burn it down.

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SCOTUS will strike down anything a DC jury decides in this case.

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Hopefully you’re right. But I’m not sure how it gets there from here.

Maybe one of our resident legal scholars can lay out the path?

Otherwise - they are just doing this to sink Trump for 2024.

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Like a kid on Christmas morning. The only chance your boy has is for Trump to be indicted.

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Are you high? I do not want Trump to get indicted.

I think this is total nonsense and Biden and the DOJ should be prosecuted themselves as traitors

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and to save democracy.

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Yall are still running this nonsense?

Celtic are you a communist or socialist?

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Jack Smith and his team are preparing to bring the bulk of any charges in the case in South Florida rather than Washington.

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Interesting. We all know a DC jury would find Trump guilty regardless. Can’t get a fair trial there.

Florida on the other hand…. Maybe he has a chance. If this is being done to just bloody him up a bit for 2024 - this makes sense.

No way the trial happens before the election.

I hope this gets to SCOTUS. Not sure how.