We are living through a spike in the number of criminal investigations and prosecutions exposed to public view that involve classified information. Like all criminal cases, these high-profile matters move at different rates and yield different outcomes. As a former counterespionage prosecutor and supervisor, I find it interesting that so many in the public feel confident asserting (often in social media channels) that individual cases are not moving quickly enough. This is a moment for everyone to step back and let the investigators and prosecutors do their jobs.

I started my legal career as an Assistant District Attorney in Manhattan. As a junior trial prosecutor, my cases were mostly “reactive,” meaning that they came to me after the police had already made an arrest. For felony cases, we generally had six days from arrest to decide whether to indict my defendants. My fellow ADAs and I moved fast, worked responsibly, and helped each other constantly to meet that deadline. If we decided we had a provable and just case, we indicted.

Jumping forward in my career, I spent about seven and a half years as a national security prosecutor at the U.S. Department of Justice (DOJ). I handled investigations and cases such as Espionage Act violations, malicious cyber activity conducted or sponsored by nation-state adversaries such as Russia, economic espionage, and seditious conspiracy. Most of these cases involved classified information in some way. Most moved slowly and methodically. On some, we had to act quickly.

Investigating and prosecuting any criminal case is hard. Prosecutors are not just advocates. Rather, they are bound to seek justice. They must uphold their own ethical obligations and protect defendants’ constitutional rights even as they prosecute those same defendants. It is good for the judicial system when prosecutors are able to methodically and deliberately assess these and other aspects of a case. But that can take time.

The moment classified information enters a criminal case – when the national security and criminal justice systems meet – everything gets more difficult. Intelligence agencies that protect national security information must decide whether to allow any of it into a criminal prosecution, which is a fundamentally public process if a case goes to trial. Prosecutors, who are accustomed to “owning” their own cases and using all admissible evidence to prove their cases beyond a reasonable doubt, must run many decisions past intelligence officials who operate under very different rules and constraints. Intelligence officials evaluate downstream consequences of any disclosure from a counterintelligence perspective – what immediate effect the disclosure could have, what the second- and third-order impacts might be, how a sophisticated adversary might combine different bits of information – before the team can decide whether to cause or risk disclosure of each item of classified information. For example, would disclosing the identity of a covert operative allow an adversary to identify their human sources? Would revealing that the U.S. Government was aware of a particular communication allow an opposing service to determine where and how its systems were compromised?

Prosecutors’ jobs are made even more difficult – and appropriately so – when they need to review classified information to protect the defendant’s rights. DOJ policy such as Justice Manual Sections 9-90.200 and 9-90.210 requires prosecutors in certain cases to review intelligence agencies’ files to see whether the agencies possess any information that the prosecutors would be ethically and legally obligated to disclose to a target if prosecutors were to bring charges. Prosecutors in any case must disclose exculpatory and impeachment evidence and comply with discovery obligations set forth in Rule 16 of the Federal Rules of Criminal Procedure and the Jencks Act. The fact that discoverable information is classified does not in and of itself change the fact that prosecutors must disclose it. Even in cases that involve classified information, defendants retain due process rights. In other words, whether prosecutors can use classified information to prove a defendant’s guilt is not the only question. An equally important consideration is whether prosecutors can ethically prosecute a defendant without creating an unacceptable risk to national security by providing classified information in discovery to the defense team.

This all happens in the context of the need to prove a defendant’s guilt beyond a reasonable doubt of complicated statutes. The most commonly charged sections of the Espionage Act, 18 U.S.C. § 793 and 18 U.S.C. § 794, rely on proof that the information that a defendant stole, retained, or disclosed constitutes “national defense information,” or NDI, and did so willfully. NDI can consist of, for example, classified intelligence reports containing “information about intelligence sources and methods,” classified military information, or “unique identifiers for human sources,”  In most cases, prosecutors must establish beyond a reasonable doubt that the information relates to national defense, that the government took steps to keep it from public disclosure, and that its unauthorized disclosure could potentially harm the United States or aid its adversaries. (This was discussed, for example, in the government’s brief in the prosecution of Harold T. Martin.)

It is not enough for a prosecutor to simply argue, “the defendant took and disclosed classified information.” Instead, a jury must unanimously find that the information met each part of the NDI definition. And juries do not receive security clearances. That means that prosecutors have to present to an ordinary group of uncleared people evidence, for example, acknowledging that the information is real U.S. government information, setting forth how the information related to national defense, and describing how an adversary would use it to harm the United States. Each of those components could in turn require disclosure of additional classified information in discovery, to the jury, and potentially to the public.

There are indeed procedures available to prosecutors that provide some protection of classified information in a criminal prosecution. The Classified Information Procedures Act, or CIPA, 18 U.S.C. App. III, provides a framework for determining whether and to what degree classified discovery and evidence will be kept from public view. CIPA has been described as a “procedural statute” that does not change a defendant’s rights or a prosecutor’s obligations, but rather establishes a process for decisions about how those rights and obligations will be addressed before a trial begins to avoid surprises and allow the government to learn in advance the national security cost of proceeding. Critically, judges, not prosecutors, make those decisions, after reviewing the classified information at issue and hearing from the parties. Judges determine whether prosecutors’ proposed protections for classified information, such as using pseudonyms for covert officers who testify as witnesses, redacting classified documents, or permitting jurors to see information that is not shown to the public are justified in the context of the defendant’s due process rights, which include the rights to confront witnesses and to know the evidence presented against them, and the foundational U.S. tradition of public trials.

On top of all that, some judges hate CIPA. Although in non-national security cases judges may allow some information, such as information that could identify confidential informants and jeopardize their safety, to be kept from the public and even from defendants, many of them, at least initially, resist the idea of restricting access to case information that would ordinarily be public. Particularly in counterintelligence cases, and in contrast to organized crime and even counterterrorism cases, the information the government seeks to protect does not simply relate to how evidence was obtained, but rather constitutes the core evidence of crimes charged – the government must prove that the classified information in a counterintelligence case constituted NDI. Because of the important competing interests at issue and the consequences of each decision, CIPA litigation can be lengthy, complex, and contentious. An adverse decision may require prosecutors to dismiss their case.

It may be tempting to say that these and other considerations introduce unnecessary complexity into what should be a straightforward case. But a prosecutor in a national security case, like a prosecutor in any case, cannot stand in front of a judge or jury and say, “it’s obvious.” That is never enough. A prosecutor must prove each and every element of a crime beyond a reasonable doubt and scrupulously protect the defendant’s rights in the course of doing that. That only gets more intensely complicated in a national security case, and it is far better for prosecutors to make sure that they can satisfy their multiple and weighty burdens before initiating a case and the potential cascade of consequences for the government and defendants that follows.

Of course, sometimes a case presents less factual and procedural complexity. That will usually be for reasons that the public will never know, such as an assessment that publicly disclosing or acknowledging some classified information is an acceptable risk under the circumstances. Or sometimes a target or other external circumstance forces the hand of law enforcement (for example, if the target is preparing to flee or disclose classified information), and the risks of waiting to make an arrest outweigh the litigation risk of moving ahead. For example, the recent arrest and charging of Jack Teixeira appears to have moved rapidly for one or more reasons. The public does not and should not have insight into these tactical calculations by law enforcement to the extent that they involve highly sensitive information, do not bear on the legality of arrests or searches, and are not relevant to a defendant’s guilt or innocence. But no one wants a criminal justice system in which officers and prosecutors move more quickly simply because the public thinks they should. That increases the chances of all kinds of errors. Anyone clamoring for prosecutors to move faster for non-operational reasons in an Espionage Act case, or who calls any case involving classified information “simple,” needs to keep in mind that there are fine public servants working to satisfy diverse and sometimes contradictory requirements. Investigators and prosecutors pursuing counterintelligence cases are maximizing their chances of successfully prosecuting those who betray one of the nation’s highest trusts while protecting defendants’ rights and national security. The cases are complex. It’s not easy. Give them time.

IMAGE: Attorney General Merrick Garland waits to speak during a news conference at the U.S. Department of Justice headquarters April 14, 2023, in Washington, D.C. (Photo by Drew Angerer via Getty Images)