# How Classified Evidence Reaches a Criminal Trial When the government prosecutes someone over secrets — an espionage charge, a leak, a terrorism case, a sanctions case — two things have to happen at once that do not fit together. The defendant has a constitutional right to see the evidence against him and to put on a defence. The government has material it says cannot be shown to anyone. This page maps the procedure Congress built to hold both of those at the same time, stage by stage, from the first question anyone asks to the last thing Congress ever hears about it. The procedure is the [[Classified Information Procedures Act]], passed in 1980 and printed in the appendix to title 18 of the United States Code. It was written to solve a specific problem that had a name at the time: *graymail*, the tactic of demanding classified material tangentially related to the charge in order to force the government to choose between its secret and its case. The Act's answer was to move every one of those fights to the front of the case, where a judge could resolve them before a jury was ever seated. Courts have been clear that it created procedures and not privileges — it added no new reason to withhold anything, and no new right to get it. ⭐ **The organizing finding is that the Act is written as a balance and built as a ratchet.** Sixteen distinct levers appear in its sections. Fourteen of them are moved by the prosecuting side. Four of those fourteen are moved by the [[Attorney General]] in person, and three of the four move by an affidavit or a certificate that nobody outside the government ever reads. The defendant moves one: the notice of what he intends to use, which is a disclosure he is required to make. The court moves one, the rebuttal duty, and it is the only sanction in the statute the government cannot lift by taking something back. The second finding is the sharpest clause in the Act, and it is a clause about timing. Under § 6(e)(1), if the judge rules that a substitute summary is not good enough — that the defendant may use the real material — the Attorney General can reverse that ruling by filing an affidavit objecting to the disclosure. The court *shall* then order the defendant not to disclose it. No standard is stated and no review is provided. Section 6(e)(2) says the court must then dismiss the case. But it also says the dismissal does not take effect until the government has had the chance to appeal **and thereafter to withdraw its objection**. So the penalty for taking the evidence away is suspended until the party that took it decides whether it would rather hand the evidence over. It is a price, not a sanction. The third finding is what the one famous dismissal actually shows. The case everyone cites for § 6(e)(2) working is the 1989 prosecution of a former CIA station chief, where the district court refused every substitute the government offered, the Attorney General filed the objecting affidavit, and the indictment was dismissed with prejudice two days later. The court of appeals affirmed in September 1990. But that case was brought by an [[Independent Counsel]] — see [[United States v. Fernandez]] — so the official who held the veto was not the official whose case it was. The one time the sanction bit, the party choosing the secret was not the party paying for it. The fourth is what happens to all of this afterwards. The Attorney General reports to the intelligence and judiciary committees twice a year on the cases the Department decided **not** to bring because classified material would have come out. Nothing requires a report on the cases that were brought: not the deletions, not the substitutions, not an overridden ruling, not a withdrawn objection. The one clause that reached the whole machine — a report on the Act's operation and effectiveness — was annual for three years and has read "as necessary" ever since 1983. Sibling maps: [[How a Federal Prosecution Begins and Ends]] is the ordinary case this one is the exception to; [[How Information Is Classified and Declassified]] is where the classification this Act inherits comes from; [[How a Security Clearance Is Granted and Revoked]] is the gate that decides which lawyer may read the file; [[Deferred and Non-Prosecution Agreement Crosswalk]] is the other place where a federal criminal case is resolved largely out of a judge's sight. > [!note] How to read this chart > `──▶` = the main path · `└─▶` = a branch · `■` = a stage · `◆` = an instrument inside a stage · `◇` = a decision point · `⊘` = a route foreclosed by statutory text · `◎` = the hinge, the point where the court's own ruling stops and the executive decides · `☐` = owed to Congress · `✕` = a check that turns out not to be one · `⏳` = a clock the statute actually sets · `⚑` = a duty with no due date · `★` = used or decided in 2025–26 · `◈` = a count or a reading made on this page rather than published anywhere. Section numbers are the Classified Information Procedures Act unless marked otherwise. Nobody is named inside the chart; each step is identified by the provision that does the work, and the links are in the prose below. ``` HOW CLASSIFIED EVIDENCE REACHES A CRIMINAL TRIAL (as of 28 October 2026) │ ──▶ main path └─▶ branch ■ stage ◆ instrument ◇ decision │ ⊘ a route foreclosed by statutory text │ ◎ the hinge: the court's own ruling stops here and the executive decides │ ☐ owed to Congress ✕ a check that turns out not to be one │ ⏳ a clock the statute actually sets ⚑ a duty with no due date │ ★ used or decided in 2025-26 │ ◈ a count or a reading made on this page rather than published anywhere │ Section numbers are the Classified Information Procedures Act of 1980, printed in the │ appendix to title 18 of the United States Code. Names here are plain text; the links │ are in the prose, the Notes and the See also. │ ■ STAGE 0 · IS THERE CLASSIFIED INFORMATION IN THE CASE AT ALL? │ │ ◆ § 1 · THE DEFINITION IS BORROWED, NOT MADE. "Classified information" is anything │ the Government has determined, under an executive order, statute or regulation, │ requires protection against unauthorized disclosure. The Act nowhere says what │ MAY be classified. It inherits the answer from whoever did the classifying. │ │ ◎ So the first question in the case is settled outside the case. A court applying │ this statute asks whether material IS classified, never whether it should have been. │ │ ◆ § 9A · THE AGENCY THAT OWNS THE SECRET IS TOLD, AND KEPT TOLD. The Assistant │ Attorney General for the Criminal Division or for National Security, together │ with the United States attorney, must brief the senior official of the agency │ the information came from -- as soon as practicable once a prosecution looks │ possible, and again as needed to keep that official "fully and currently │ informed of the status of the prosecution." Added 2000, widened 2006. │ ⚑ No deadline, no filing, no docket entry. Nobody else is owed anything like it. │ │ ──▶ │ ■ STAGE A · THE SECURITY APPARATUS GOES UP BEFORE ANY RULING IS MADE │ │ ◆ § 9 · THE RULES FOR THE COURTS ARE WRITTEN BY THE CHIEF JUSTICE IN CONSULTATION │ WITH THE ATTORNEY GENERAL, the Director of National Intelligence and the │ Secretary of Defense. ☐ Each set, and every later change, is submitted to the │ congressional committees and takes effect 45 days afterward. The Security │ Procedures now in force were issued 1 December 2010, effective 15 January 2011, │ and replaced the first set of 12 February 1981. │ │ ◆ SECURITY PROCEDURES § 2 · THE COURT APPOINTS A CLASSIFIED INFORMATION SECURITY │ OFFICER. Before the designation, the Department of Justice Security Officer │ must certify the person in writing. In practice the Government files the │ motion, names the individual and supplies the certification. │ ◈ The officer who runs classified security for the court is vouched for by the │ department prosecuting the case. Read on this page from the statute, the │ Security Procedures and a filed designation motion; no source frames it so. │ │ ◆ CLEARANCES AND THE ROOM. The court must provide a secure facility and control │ access to it. Defense counsel ordinarily need a clearance. The defendant │ ordinarily does not get one -- and courts have upheld the arrangement in which │ cleared counsel has read material the client never will. │ ⊘ Jurors sit outside all of it: no investigation, no clearance requirement. │ │ ──▶ │ ■ STAGE B · § 2 · THE PRETRIAL CONFERENCE (either party may ask) │ │ The one stage with no asymmetry in it. After the indictment or information is │ filed, any party may move for a conference, and the court may call one itself. │ It sets the timetable for discovery, for the defendant's notice and for the │ Government's hearing motions. │ │ ◆ A statement the defendant or defense counsel makes at the conference may be used │ against the defendant only if it is in writing and signed by both. │ │ ──▶ │ ■ STAGE C · § 3 · THE PROTECTIVE ORDER (on the Government's motion) │ │ ◎ "the court SHALL issue an order to protect against the disclosure of any │ classified information disclosed by the United States." The verb is mandatory │ and the trigger is the Government's motion. There is no counterpart motion. │ │ ──▶ │ ■ STAGE D · § 4 · THE DELETIONS THE DEFENSE NEVER SEES │ │ ◆ WHAT THE COURT MAY ALLOW, on a sufficient showing: deletion of specified items │ of classified information from discovery, a summary in place of the material, │ or a statement admitting the relevant facts the material would show. │ │ ◆ THE STANDARD IS NOT PLAIN RELEVANCE. Classified information is discoverable │ only if it is relevant AND HELPFUL to the defense -- the informant-privilege │ test imported into this Act by the D.C. Circuit in 1989, and now the working │ rule. The Act creates no independent right of discovery of its own. │ │ ◎ § 4 · HOW THE SHOWING IS MADE. The court may permit the Government to make its │ request as "a written statement to be inspected by the court alone." The court │ reads the actual material, in camera and ex parte, and decides what is helpful │ to a defense it is hearing about only from the other side. If relief is granted, │ the entire statement is sealed and preserved in the record for a possible appeal. │ │ ✕ The sealing is called preservation for appeal. § 7 gives the appeal to the │ Government only, so the record is kept for the party that filed it. │ │ └─▶ The defense is not simply absent. Counsel may file a sealed statement of the │ defense theory, so that the judge reading the material knows what would help. │ It is an argument submitted blind about documents counsel has not read. │ │ ──▶ │ ■ STAGE E · § 5 · THE NOTICE ONLY ONE SIDE GIVES │ │ ◆ § 5(a) · A defendant who reasonably expects to disclose classified information, │ in any way, at any point in the proceeding, must notify the Government and the │ court in writing. ⏳ Within the time the court sets; failing that, thirty days │ before trial. Anything learned later requires prompt notice. │ │ ◆ AND MAY NOT USE IT MEANWHILE. No disclosure until notice has been given and │ the Government has had a reasonable chance to seek a § 6 ruling and to take any │ appeal -- so the defendant's own timetable is set by the other side's options. │ │ ◇ NOTICE ADEQUATE? │ └─▶ no · § 5(b): the court may bar disclosure of the unnoticed information and │ bar the defendant from examining any witness about it. │ ──▶ yes · on to § 6. │ │ ⊘ There is no reciprocal provision. The Government files no notice of the │ classified information it intends to use, and none of what it will object to. │ │ ──▶ │ ■ STAGE F · § 6(a)-(b) · THE HEARING, AND WHO CLOSES THE COURTROOM │ │ ◎ § 6(a) · "the United States may request the court to conduct a hearing" on the │ use, relevance and admissibility of the classified information. "Upon such a │ request, the court SHALL conduct such a hearing." The defendant cannot start it. │ │ ◎ § 6(a) · THE CERTIFICATE, NOT THE FINDING, CLOSES THE ROOM. The hearing, or any │ part of it the Attorney General specifies, is held in camera if the Attorney │ General certifies that a public proceeding MAY result in disclosure. The court │ takes the certificate; it makes no finding of its own on the point. │ │ ◆ WHAT THE COURT MUST DO IN RETURN. As to each item of classified information, │ set forth IN WRITING the basis for its determination -- and rule before the │ proceeding the motion was filed in advance of. The strongest obligation the │ Act puts on the judge is an obligation to explain. │ │ ◆ § 6(b) · WHAT THE DEFENDANT IS TOLD. Notice of the classified information at │ issue. If he has already received the specific information, it is identified; │ if not, a GENERIC CATEGORY approved by the court may be enough. │ │ ──▶ │ ■ STAGE G · § 6(c) · THE SUBSTITUTION │ │ Once the court has authorized disclosure, the Government may move to give the │ defendant something else instead: an admission of the relevant facts, or a summary. │ │ ◆ THE TEST. The court SHALL grant the motion if the substitute gives the defendant │ "substantially the same ability to make his defense as would disclosure of the │ specific classified information." Differences from the original do not by │ themselves make a substitute inadequate. │ │ ◎ § 6(c)(2) · THE AFFIDAVIT NOBODY READS BUT THE JUDGE. The Government may file an │ affidavit of the Attorney General certifying that disclosure "would cause │ identifiable damage to the national security of the United States," and on the │ Government's request the court must examine it in camera and ex parte. │ │ ◇ SUBSTITUTE GRANTED? │ ──▶ yes · the trial goes forward on the summary. Stage I. │ └─▶ no · Stage H, which is where the statute turns over. │ ■ STAGE H · § 6(e) · THE OVERRIDE, AND THE SANCTION THE GOVERNMENT MAY UNDO │ │ ◎ § 6(e)(1) · THE COURT'S OWN RULING IS REVERSED BY AFFIDAVIT. Where the court has │ DENIED the substitution -- that is, has held that the defendant may use the real │ material -- and the Government files an affidavit of the Attorney General │ objecting to disclosure, "the court SHALL order that the defendant not disclose │ or cause the disclosure of such information." No standard. No review. │ │ ◆ § 6(e)(2) · WHAT IS SUPPOSED TO FOLLOW. The court "shall dismiss the indictment │ or information" -- except where it determines the interests of justice would │ not be served by dismissal, in which case it orders something else: dismissal │ of specified counts, a finding against the United States on any issue the │ excluded information relates to, or striking all or part of a witness. │ │ ✕ AND THE CLAUSE THAT HOLDS IT OPEN. No such order "shall take effect until the │ court has afforded the United States an opportunity to appeal such order under │ section 7, and THEREAFTER TO WITHDRAW ITS OBJECTION to the disclosure." │ │ ◈ So the sanction is a price rather than a penalty. The Attorney General, having │ taken the material away from the defendant, chooses afterwards whether to keep │ the secret and lose the case or give up the secret and keep it. Reading made on │ this page from the text of § 6(e)(2); no court or report is cited for it. │ │ └─▶ THE ONE CASE THE DISMISSAL IS CITED FOR, AND WHAT IT ACTUALLY SHOWS. A former │ CIA station chief, charged in 1989 with false statements to the agency's │ inspector general and to a presidential commission. The district court found │ two categories of classified material relevant and helpful and REFUSED every │ substitute offered. The Attorney General filed the § 6(e)(1) affidavit on │ 22 November 1989; the indictment was dismissed with prejudice two days later; │ the court of appeals affirmed on 6 September 1990. And the appellant was the │ Office of Independent Counsel. ◈ The one time the sanction bit, the official │ who held the veto was not the official prosecuting the case -- the party │ choosing the secret was not the party paying for it. │ │ ──▶ │ ■ STAGE I · § 6(f) · THE ONE PROVISION THAT RUNS THE OTHER WAY │ │ Where the court authorizes disclosure under § 6(a), it must -- unless the interests │ of fairness do not so require -- order the United States to give the defendant the │ information it expects to use in rebuttal, and may impose a continuing duty to do │ so. If the Government does not comply, the court may exclude the undisclosed │ evidence and bar the Government from examining any witness about it. │ │ ◈ It is the only sanction in the Act aimed at the Government that the Government │ cannot lift by withdrawing something. It is also conditioned on an interests-of- │ fairness exception, and it reaches only rebuttal. │ │ ──▶ │ ■ STAGE J · § 7 · THE APPEAL ONLY ONE SIDE HAS │ │ ◎ The United States may take an interlocutory appeal, BEFORE OR AFTER JEOPARDY HAS │ ATTACHED, from an order authorizing disclosure, imposing sanctions for │ nondisclosure, or refusing a protective order it sought. │ │ ⏳ Fourteen days from the order if the appeal is taken before trial, and the trial │ does not begin until the appeal is resolved. Taken during trial, the trial is │ adjourned and the appeal is expedited. │ │ ⊘ The defendant has no counterpart. An order deleting material from his discovery, │ closing the hearing, or barring him from using what the court said he could use, │ is reviewable only on appeal from a conviction -- after the trial it shaped. │ │ ──▶ │ ■ STAGE K · § 8 · AT TRIAL, AND WHAT CONGRESS IS TOLD AFTERWARDS │ │ ◆ § 8(b) · The court may admit part of a writing, recording or photograph, or admit │ the whole with the classified portions excised, unless fairness requires the │ whole to be considered. │ ◆ § 8(c) · The Government may object to a question that would require disclosure of │ classified information not already found admissible, and the court then takes │ protective steps -- which may include requiring a proffer, from each side, of │ what the answer is expected to be. │ │ ◆ § 12 · THE GUIDELINES THAT DECIDE WHETHER THE CASE IS BROUGHT AT ALL. Within │ 180 days of enactment the Attorney General was to issue guidelines specifying │ the factors the Department uses in deciding whether to prosecute where, in the │ Attorney General's judgment, classified information may be revealed. │ ☐ They are transmitted to the appropriate committees of Congress. │ ⊘ The Act does not require them to be published. │ ◆ § 12(b) · A declination requires a written explanation covering four things: the │ intelligence that might be disclosed, the purpose of the disclosure, the │ likelihood of it, and the possible consequences for national security. │ │ ◆ § 13 · THE REPORTS. (a) The Attorney General reports semiannually, orally or in │ writing, to the two intelligence committees and the chairs and ranking members │ of the two judiciary committees -- on the cases the Department decided NOT to │ prosecute under § 12(a). (c) A report on the operation and effectiveness of │ the Act was due each year "for the first three years this Act is in effect." │ ⚑ "After three years, such reports shall be delivered as necessary." │ ◈ The declinations are reported on a clock. The dispositions -- the deletions, │ the substitutions, the overridden rulings, the withdrawn objections -- are not │ reported at all, and the one review clause that reached them went discretionary │ in 1983 and has stayed there. │ │ ──▶ verdict, or the plea that most of these cases actually end in. │ │ ■ PART L · THE LEVERS, AND WHOSE HAND EACH ONE IS IN LEVER PROVISION WHOSE HAND WHO CAN RESIST IT -------------------------------------- --------- ----------------- ---------------------- Protective order over what is produced § 3 Government nobody; court "shall" Delete items from discovery § 4 Government nobody Make the showing in a sealed filing § 4 Government nobody Notice of what will be used at trial § 5 Defendant only Government Hearing on use and admissibility § 6(a) Government nobody; court "shall" Close the courtroom § 6(a) Attorney General nobody Generic category in place of notice § 6(b) Government defendant, in argument Summary in place of the evidence § 6(c) Government defendant, in argument Ex parte damage affidavit § 6(c)(2) Attorney General nobody Override the court’s disclosure ruling § 6(e)(1) Attorney General nobody Suspend, then undo, the sanction § 6(e)(2) Government nobody Rebuttal material to the defendant § 6(f) the court fairness exception Interlocutory appeal § 7 Government only does not arise Objection to a question at trial § 8(c) Government defendant, in argument Whether the case is charged at all § 12 Attorney General nobody What Congress is told afterwards § 13 Attorney General nobody ╔════════════════════════════════════════════════════════════════════════════════════╗ ║ WHAT THE SEQUENCE ADDS UP TO ║ ╠════════════════════════════════════════════════════════════════════════════════════╣ ║ Sixteen levers. Fourteen are moved by the prosecuting side, and four of those ║ ║ fourteen are moved by the Attorney General in person. Three of the four move by ║ ║ an affidavit or a certificate that nobody outside the Government ever reads. ║ ╠════════════════════════════════════════════════════════════════════════════════════╣ ║ One of the sixteen runs the other way. The rebuttal duty of § 6(f) is the only ║ ║ sanction in the Act that the Government cannot lift by taking something back -- ║ ║ and it carries an interests-of-fairness exception and reaches rebuttal alone. ║ ╠════════════════════════════════════════════════════════════════════════════════════╣ ║ The Act asks the judge for one thing above all others, and it is not a decision. ║ ║ It is a written statement of the basis for each item, filed under seal, for the ║ ║ use of the only party the statute lets appeal. ║ ╚════════════════════════════════════════════════════════════════════════════════════╝ ``` ## Notes - **Where the Act lives, and why its citation looks odd.** The Classified Information Procedures Act has never been folded into the body of title 18. It sits in that title's appendix and is cited section by section — § 4, § 6(e)(2) — rather than by a five-digit code number, which is why legal citations to it look nothing like citations to the rest of the federal criminal code. - **The discovery standard was borrowed from informant cases.** Classified material is discoverable under § 4 only if it is relevant *and helpful* to the defence. The D.C. Circuit took that formula in 1989 from a 1957 Supreme Court case about whether the government must name a confidential informant, and it has been the working rule since — see [[United States v. Yunis]]. The practical effect is that a judge decides what would help a defence while hearing about that defence from the prosecution, with an option for defence counsel to file a sealed statement of the theory it is arguing blind. - **The court's security officer is certified by the Department of Justice.** The Security Procedures issued by the Chief Justice require the court to appoint a Classified Information Security Officer, and require the Department of Justice Security Officer to certify that person in writing before the designation is made. Filed designation motions show the government moving for the appointment and naming the individual. The officer's duties are to the court; the vouching comes from the department prosecuting the case. - **Jurors are the one group with no security condition attached.** The Security Procedures subject court personnel to clearance and access controls and expressly do not reach jurors — no investigation, no clearance. The twelve people who decide the case are the only participants the system does not screen. - **Defence counsel may hold a clearance the defendant never will.** Protective orders routinely limit classified material to cleared persons, and courts have approved arrangements in which cleared counsel reads material the client is not permitted to see. In at least one terrorism prosecution the court appointed cleared counsel when the defendant's own lawyers could not obtain clearances. - **Current cases, as of 28 October 2026.** John Bolton was indicted in the District of Maryland on 16 October 2025 on eighteen Espionage Act counts — eight of unlawful transmission and ten of unlawful retention of national defence information — and pleaded guilty on 26 June 2026 to a single retention count, with a $2.25 million fine, an agreed cap of sixty months and an agreement to debrief national security officials. Sentencing was set for today. His counsel's public explanation of the plea was that it spared the government a case that "could expose additional sensitive information," which is the graymail logic running from the defence side of the table. The prosecution of Nicolás Maduro, captured in Caracas on 3 January 2026 and arraigned in the Southern District of New York two days later on narco-terrorism and cocaine-importation conspiracy counts, is widely expected by practitioners to be dominated by this procedure; no ruling under the Act has been confirmed in that case and none is asserted here. See [[John Bolton]] and [[Nicolás Maduro]]. - **The guidelines that decide whether these cases are brought are not public.** Section 12 required the Attorney General to issue guidelines on the factors the Department weighs in deciding whether to prosecute when classified information may be revealed, and to transmit them to the congressional committees. The Act contains no publication requirement, and no published version was located. - **How often the dismissal sanction has issued is not a published figure.** Neither the Congressional Research Service's treatments of the Act nor the practitioner literature consulted gives a count, and none of them characterises the sanction as rare or as common. The 1989 dismissal is the case that is cited; whether there are others is an open question rather than a settled no. - **What this page does not assert.** It does not claim that any particular ruling under the Act was wrong, that any defendant was denied material he was entitled to, that the sanction has never issued since 1989, that the Act has been amended since 2006, or that any proceeding under it is under way in a currently pending case. The readings marked `◈` — the count of sixteen levers, the characterisation of § 6(e)(2) as a price, the point about the security officer's certification, and the point about what the reporting clause reaches — are this page's own reading of the statutory text, and are labelled as such rather than attributed to a court or a report. - **Open questions worth watching.** Whether any court has ever found a § 6(c) substitute inadequate and then seen the objection withdrawn rather than the case dismissed, which is the disposition the statute invites and nobody records. Whether the sealed § 4 statements, preserved "for use in the event of an appeal" the defendant cannot take, are ever read by anyone again. And whether the operation-and-effectiveness report has in fact been delivered at any point in the forty-three years since it stopped being annual. ## See also - [[Classified Information Procedures Act]] - [[How a Federal Prosecution Begins and Ends]] - [[How Information Is Classified and Declassified]] - [[How a Security Clearance Is Granted and Revoked]] - [[Deferred and Non-Prosecution Agreement Crosswalk]] - [[Espionage Act of 1917]] - [[Graymail]] - [[Classified Information Security Officer]] - [[United States v. Fernandez]] - [[United States v. Yunis]] - [[Iran-Contra Affair]] - [[Speedy Trial Act]] - [[Federal Rules of Criminal Procedure]] - [[United States District Courts]] - [[United States Courts of Appeals]] - [[ODNI]] - [[Judiciary Hub]] - [[Foundations Hub]]