Special Counsel Jack Smith’s 37-count indictment of President Trump — comprising 31 counts for 31 particular documents —  for retaining classified information is set to go to trial in August. 

One charge, though, Count 11, stands out amid a blizzard of “Top Secret” and “Special Handling” designations. It is simply notated “No Marking,” suggesting it is not classified.

So why is it included?

The “Date of Offense” attached to the document is January 20, 2021 — August 8, 2022, meaning that the document became contraband the moment President Biden became president and was so until it was recovered during the FBI’s search of Mar-a-Lago last summer. It is “Undated,” and “concerns military contingency planning of the United States.” 

Mr. Smith reports that during the FBI’s search of Mr. Trump’s Palm Beach manse, agents recovered 102 documents with classified markings. Of these, 17 were “Top Secret,” 54 were “Secret,” and 31 were simply “Confidential.” Further markings on some documents indicate that, because they implicate intelligence, they can only be viewed in a  “Sensitive Compartmented Information Facility.”

Of these documents, though, and out of the total tranche of more than 300 that made their way to Mar-a-Lago and another of Mr. Trump’s properties at Bedminster, Mr. Smith decided to charge only 31, roughly a tenth, as bases for crimes. This could be because the others were relatively innocuous, or the opposite: Any documents used in evidence will have to be disclosed to the jury. It could be that Mr. Smith thought some were not worth the risk— or the trouble.    

Mr. Smith alleges that across all these documents, Mr. Trump hoarded “information regarding defense and weapons capabilities of both the United States and foreign countries; United States nuclear programs; potential vulnerabilities of the United States and its allies to military attack; and plans for possible retaliation in response to a foreign attack.”

An Executive Order from 2009 pegs classification status to how much exposure could pose a potential threat to national security. A “Top Secret” document, for example, would pose “exceptionally grave damage to the national security,” while a “Classified” one would pose mere “damage.” The modern classification system was created by President Truman in 1951, as the Cold War bloomed. 

Some information relating to nuclear secrets, which Mr. Smith alleges were at Mar-a-Lago, is “born secret” — or, alternatively, “born classified” —  meaning it is presumed classified from the moment of its inception. A law from 1954 roped into this category “All data concerning (1) design, manufacture, or utilization of atomic weapons; (2) the production of special nuclear material; or (3) the use of special nuclear material in the production of energy.”

In 1979, a magazine, “The Progressive,” challenged the “born secret” policy, arguing that it was an unconstitutional prior restraint on speech, which the Supreme Court has said is the “most serious and least tolerable” kind of First Amendment violation. The magazine wanted to publish what it called the “secret of the hydrogen bomb.” 

The Progressive’s cover was headlined “The H-Bomb Secret,” with the teaser “How We Got It and Why We’re Telling.” They argued that the secret was gleaned from publicly available sources and calculations that could be undertaken by anyone. The Department of Energy maintained that the design was “born secret.” 

Ultimately, a court found for the government and issued an injunction to stop publication, reasoning that a “mistake in ruling against the United States could pave the way for thermonuclear annihilation for us all. In that event, our right to life is extinguished and the right to publish becomes moot.” Eventually the designs leaked out anyway, mooting the injunction.  

One clue as to why an unclassified document — if that’s what it was — made it into the indictment of Mr. Trump is that despite Mr. Smith’s Talmudic focus on classification, his case against Mr. Trump is legally indifferent to that taxonomy of secrecy. That is because, aside from counts alleging obstruction and making false statements, the charges all flow from the Espionage Act, which predates today’s classifications.

The Espionage Act contemplates “information relating to the national defense,” a blurrier — maybe too blurry for the Constitution — category than the ones signed into effect imposed by President Truman. Count 11, then, could relate to a document that is not classified but still prosecutable under the Espionage Act. That could be why its description concerns “military contingency planning.” The Act, though, would require showing that Mr. Trump took the documents “willfully.”

That’s where it’s possible even for a newspaper to imagine that the degree of blurriness comes in to make a difference and, potentially, save Mr. Trump from a conviction. The Constitution, she doesn’t like vagueness, and neither does the criminal law. The doctrine of honest services fraud, say, was found largely unconstitutional owing to its vagueness. 

Convicting Mr. Trump on the basis of secret documents could present a raft of other difficulties for Mr. Smith’s prosecutors. The Constitution mandates a “public” trial, meaning that evidence will have to be shared — not only to the jury but as part of making the case more broadly, especially when the defendant is a leading contender for the presidency. 

This could require disclosing even more documents than the 31 mentioned in the indictment’s four corners. Mr. Trump’s lawyers will also likely require security clearances. While Mr. Smith has turned over an initial batch of materials to the former president, those were declassified. Under Brady v. Maryland, the prosecution must hand over any evidence that is possibly exculpatory, even if it is classified. 

None of that, though, means that Mr. Trump is without peril. On Wednesday, a former FBI intelligence analyst, Kendra Kingsbury, was sentenced to nearly four years in prison for violating the same parts of the Espionage Act that Mr. Smith is mobilizing against Mr. Trump. Like the former president, she is alleged to have stored sensitive material in, among other places, a bathroom. 

At sentencing, the presiding district court judge, Stephen Bough, observed that “I cannot fathom why you would jeopardize our nation by leaving these types of documents in your bathtub.”