The jury at Trump's potential trial may get a glimpse at some government secrets — but like Goldilocks, prosecutors have to make sure the classified documents are just right
Department of Justice; Andrew Caballero-Reynolds/Getty Images
- Donald Trump entered a not-guilty plea to 37 criminal counts related to the retention of classified documents.
- These same classified documents could now be used in a potential trial against the former president.
- "Goldilocks" documents could be shown to a jury and calm intelligence agencies about classified information.
Prosecutors putting forth a case against former President Donald Trump in his classified documents case now have to try to find the right "Goldilocks" evidence to reveal to a jury in a potential trial.
On Tuesday, Trump entered a not-guilty plea to 37 criminal counts related to the retention of classified documents following his departure from the White House.
These same classified documents will make it difficult for prosecutors trying to reveal the gravity of Trump's actions to the nation's security to show sensitive evidence.
A law known as the Classified Information Processing Act, or CIPA, guides the discovery process for cases involving classified documents. The 1980 law added procedures to determine which classified documents can be used. According to the Justice Department, it requires the court to issue protective orders over documents that absolutely cannot be revealed through the trial process. CIPA also outlines rules by which defense attorneys can request classified documents be revealed to help their own cases.
Finding the balance between documents proving the prosecution's point and allowing the defense their due process while ensuring not to jeopardize national secrets will be key.
What are 'Goldilocks' documents?
Former DOJ prosecutor David Aaron described these to the Washington Post as "Goldilocks" documents — files that can both be shown to a jury but ease the worries of intelligence agencies that want to hold on to their most sensitive information.
"They want the document on its own to be a blinking red light that says it should obviously not have been removed," Aaron told the Post. "There's an effort for prosecutors to identify documents that would be useful as evidence and also wouldn't require a ton of technical explanation to the jury. They need them to be sensitive, but not too sensitive."
Aaron told the Post that intelligence agencies would also determine how the classified documents will be spoken about during a public trial. He told the outlet that one way those participating in the trial could do this is to speak in code or vague descriptions, known as the silent witness rule. The public will not understand what is being referred to, but the judge, defense, prosecution, and jury will.
"You might use 'country A' instead of a specific country, 'person A' instead of a specific person, and the jury would have a key," Aaron told MSNBC. "Or you might show these documents that are referred to in the indictment to the jury, and you wouldn't put them up on the screen like in a regular case. And your witness might say to the jury, 'if you look at page two, line five' and describe what's going on there without revealing any of that classified information."
Trump's next court date has yet to be set following his historic federal indictment, as prosecutors lay out the evidence against him, but there is still a chance that Trump could face no trial at all.
And if a trial does not occur before the 2024 election and Trump becomes president, he may try to pardon himself.
A representative with Trump's legal team did not immediately respond to Insider's request for comment.