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A former US federal government employee knows information that was classified as top secret by the federal government. This information is relevant to a case. They were called to testify before the court. This person is not a defendant.

I believe the 5th amendment would be a valid defense since the witness would be violating the Espionage Act, but claiming the 5th on the witness bench would probably ruin the witness' credibility before the jury. Therefore, we may safely exclude "pleading the 5th" on the answers.

Can a court compel the witness to disclose the information? Is there any lawful recourse for the witness (to keep confidentiality) other than the 5th amendment?

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  • 5
    The fifth amendment does not excuse witnesses from answering if the answer would itself be a crime. It protects witnesses from answering if the answer could be used to prosecute the witness for some other crime.
    – phoog
    Commented Jun 5, 2023 at 23:37

4 Answers 4

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The court should not compel the witness to disclose the information because there is a state secrets privilege which bars disclosure of governmental secrets in litigation.

An interlocutory appeal of some sort would generally be permitted in cases where the privilege is not honored, and typically, the federal government would become an intervenor in the litigation with respect to that issue.

Not infrequently, the state secrets privilege will prevent a matter from being litigated at all, rather than merely preventing the admission of evidence, or requiring that the matter be resolved in a sealed secret bench trial.

For example, spies cannot sue the government for not being paid for spying as a result of the state secrets privilege. Similarly, someone who suffers a personal injury arising from a covert operation can not sue the government for that injury.

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  • So, the defendant better call Sam (the uncle). Because the motion to exclude must come from the government. Remember that the hypothetical assumes it's a former employee. Commented Jun 5, 2023 at 14:54
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    @MindwinRememberMonica No. Anyone who knows state secrets can and must raise the privilege. The government can also raise the privilege independently.
    – ohwilleke
    Commented Jun 5, 2023 at 14:58
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The US Court Public Guide to Classified Information suggests that if you are a plaintiff you should file a notice when you file the (Federal) case to get the right people assigned.

18a U.S. Code § 6 appears to suggest that motions can be filed (by anyone related?) which will activate the necessary machinery where the government will stop any public disclosure of classified information.

Some organizations have more specific guidance to follow pre-appearance, even for seemingly innocuous court appearances.

TL;DR: Don't blurt out classified information in court (or anywhere else) without giving the powers that be a chance to squash that concept like a bug (or they will squash you like a bug instead).

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In theory...

Because [18 U.S. Code § 798][1] requires a "willful" disclosure of classified information, the answer lies in the definition of the legal term 'willful'. This is not the same as being willing or compelled.

The term "willfully" means no more than that the forbidden act was done deliberately and with knowledge, and does not require proof of evil intent. McClanahan v. United States, 230 F.2d 919, 924 (5th Cir. 1955), cert. denied, 352 U.S. 824 (1956); McBride v. United States, 225 F.2d 249, 255 (5th Cir. 1955), cert. denied, 350 U.S. 934 (1956). An act is done "willfully" if done voluntarily and intentionally and with the specific intent to do something the law forbids. There is no requirement that the government show evil intent on the part of a defendant in order to prove that the act was done "willfully." See generally United States v. Gregg, 612 F.2d 43, 50-51 (2d Cir. 1979); American Surety Company v. Sullivan, 7 F.2d 605, 606 (2d Cir. 1925)(Hand, J.); United States v. Peltz, 433 F.2d 48, 54-55 (2d Cir. 1970),cert. denied, 401 U.S. 955 (1971) (involving 15 U.S.C. § 32(a). See also 1 E. Devitt, C. Blackmar, M. Wolff & K. O'Malley, Federal Jury Practice and Instructions, § 17.05 (1992).

Taken from - https://www.justice.gov/archives/jm/criminal-resource-manual-910-knowingly-and-willfully#:~:text=An%20act%20is%20done%20%22willfully,See%20generally%20United%20States%20v.

So it stands to reason that if the witness knew the information was 'classified' and they answered the question, I think they would be in some trouble.

I believe the witness can simply say something to the effect of "I am unable to legally answer that under 18 U.S. Code § 798". I would love to see a court attempt to compel the witness to answer after that statement, as it could qualify as "solicitation to commit a crime" by the court. The legal debate there would be interesting.

But don't quote me. [1]: https://www.law.cornell.edu/uscode/text/18/798

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The Espionage Act requires a "willful" disclosure of classified information, so a witness testifying under threat of contempt wouldn't be subject to legal liability for that testimony.

For that reason, the Fifth Amendment wouldn't really be a valid objection. And even if the disclosure would be criminal, answering those questions wouldn't be testimony about a criminal act, but the criminal act itself, so again, the Fifth Amendment would not apply. (But perhaps cross-examination would, if questions are framed as "You told the court that x, right?"

But there are other options instead. Ideally, the witness would notify the U.S. Attorney's Office that the other party is seeking this testimony, and the USAO would then assert one of two objections:

  1. If the testimony is sought in civil litigation, the government would likely object that the testimony would be governed by the state-secrets privilege. Doing so would require testimony from the head of the relevant military or intelligence agency that disclosing the information would be likely to injure national-security interests. If the evidence is excluded, the case would continue forward on whatever other evidence remains.
  2. If the testimony is sought in a criminal case, the witness would object that it is governed by the Classified Information Procedures Act, in which case, the court should hold a hearing at which it would determine whether the information relevant and otherwise admissible. If the evidence is excluded, the court may be required to dismiss the charges against the defendant, or it may simply order a jury to make adverse inferences against the government regarding whatever information is at issue.
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    Commented Jun 7, 2023 at 20:21

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