The drip-drip-drip of revelations of President Biden’s possession of classified documents from his time as Vice President have, despite important differences, given political cover to former President Trump for his much more egregious transgressions. Yesterday’s revelations that former Vice President Pence has also turned over classified materials that he, presumably inadvertently, still possessed has turned the matter into a joke within national security circles.
Those of us in DOD, in particular, immediately conjure up our painful annual training.
A feature by three top Associated Press correspondents, “Classified records pose conundrum stretching back to Carter,” treats the matter fairly, emphasizing some themes discussed here, both by Steven and myself and several commenters, notably Andy, as this story has unfolded.
At least three presidents. A vice president, a secretary of state, an attorney general. The mishandling of classified documents is not a problem unique to President Joe Biden and former President Donald Trump.
The matter of classified records and who, exactly, has hung onto them got more complicated Tuesday as news surfaced that former Vice President Mike Pence also had such records in his possession after he left office. Like Biden, Pence willingly turned them over to authorities after they were discovered during a search he requested, according to his lawyer and aides.
The revelations have thrust the issue of proper handling of documents — an otherwise low-key Washington process — into the middle of political discourse and laid bare an uncomfortable truth: Policies meant to control the handling of the nation’s secrets are haphazardly enforced among top officials and rely almost wholly on good faith.
It’s been a problem off and on for decades, from presidents to Cabinet members and staff across multiple administrations stretching as far back as Jimmy Carter. The issue has taken on greater significance since Trump willfully retained classified material at his Florida estate, prompting the unprecedented FBI seizure of thousands of pages of records last year.
To reiterate: while all of the transgressions in question are unacceptable, probably illegal, handling of classified materials, Trump is the only one whose malfeasance was clearly intentional. All the others discovered the materials on their own (or, rather, their people did so) and promptly notified the proper authorities and turned them in. Trump, conversely, only turned them over after repeatedly ignoring requests from the National Archives and others to do so, finally necessitating the FBI coming to his compound with a search warrant in hand.
But that’s not really the point of this particular post:
It turns out former officials from all levels of government discover they are in possession of classified material and turn them over to the authorities at least several times a year, according to a person familiar with the matter who spoke on the condition of anonymity due to the sensitive nature of classified documents.
Current and former officials involved in the handling of classified information say that while there are clear policies for how such information should be reviewed and stored, those policies are sometimes pushed aside at the highest levels. Teams of national security officials, secretaries and military aides who share responsibility for keeping top-level executives informed — and the executives themselves — may bend the rules for convenience, expediency or sometimes due to carelessness.
It’s a contrast to the more rigid way the procedures are followed across the wider intelligence community, where mishandling information could be grounds for termination, a security clearance revocation or even prosecution.
“Executives go back and forth to their house with documents and read them. They read them at night, they bring them back,” said Sen. Tim Kaine, D-Va. He contrasted that pattern for top officials to senators, who are required to retain classified materials in secure rooms at the Capitol.
“I can see how this happens,” he added. “But again, every situation is different. They are all very serious. So, how many? How serious? How did you get them? Who had access to them? Are you being cooperative? And the same set of questions has to be answered with respect to Pence and with President Biden and President Trump.”
This is highly problematic but not entirely unreasonable. As appealing as the “if a staff sergeant or GS-12 had done this, they would be in jail” argument is, it’s apples and oranges. Senior officials simply aren’t going to be in a SCIF every time they access high-level secrets and they’re never really off the clock.
As for the judiciary, a separate federal law, the Classified Information Procedures Act, governs the handling of material that comes before judges in criminal prosecutions and civil lawsuits. Another law deals with foreign intelligence investigations that come before a special court that operates in secrecy. Both laws are intended to guard against the disclosure of classified information.
While Trump intended to keep the documents — he’s argued, in apparent disregard of the Presidential Records Act, that they were his personal property — he was hardly the first president to mishandle classified information.
Former President Jimmy Carter found classified materials at his home in Plains, Georgia, on at least one occasion and returned them to the National Archives, according to the same person who spoke of regular occurrences of mishandled documents. The person did not provide details on the timing of the discovery.
An aide to the Carter Center provided no details when asked about that account of Carter discovering documents at his home after leaving office in 1981. It’s notable that Carter signed the Presidential Records Act in 1978 but it did not apply to records of his administration, taking effect years later when Ronald Reagan was inaugurated. Before Reagan, presidential records were generally considered the private property of the president individually. Nonetheless, Carter invited federal archivists to assist his White House in organizing his records in preparation for their eventual repository at his presidential library in Georgia.
While he was by no means my favorite President, Carter is an honorable man. Laws such as this always start with the next Presidential term lest they be seen as motivated by partisan concerns (although, in this case, the same party controlled the White House, the House, and the Senate). But, having signed it, he was naturally going to comply with its spirit.
The National Archives declined to comment when asked to provide a list of times that classified documents were turned over to the agency by former officials.
Meanwhile, other former senior U.S. officials have insisted they have always appropriately handled classified materials. A spokesman for former Vice President Dick Cheney said he didn’t leave office with classified materials and none have been discovered at any point since. Freddy Ford, a spokesman for former President George W. Bush, told The Associated Press that “all presidential records — classified and unclassified — were turned over to NARA upon leaving the White House,” referring to the National Archives and Records Administration.
A spokesperson for President Barack Obama didn’t comment but pointed to a 2022 statement from the National Archives that the agency took control of all of Obama’s records after he left office and was “not aware of any missing boxes of Presidential records from the Obama administration.” Former President Bill Clinton’s office said, “All of President Clinton’s classified materials were properly turned over to NARA in accordance with the Presidential Records Act.”
None of that’s surprising. Whatever else one might think of him, Cheney is an old pro with a competent staff. Clinton, Bush, and Obama were all relative neophytes when they were sworn in but they were mindful of their own legacies and understood their duty to history to preserve records. (And, conversely, learned from Nixon not to create records they didn’t want kept.)
The closing days of any presidency are chaotic, as aides sort through years of their bosses’ accumulated materials to determine what must be turned over to the archives and what may be retained. Different teams of individuals are responsible for clearing different offices and maintaining consistent standards can prove challenging, officials said.
In Pence’s case, the material found in the boxes came mostly from his official residence at the Naval Observatory, where packing was handled by military aides rather than staff lawyers. Other material came from a West Wing office drawer, according to a Pence aide who spoke on condition of anonymity due to the sensitive nature of the discovery. The boxes were taped shut and were not believed to have been opened since they were packed, the person said.
Certainly, there has been no modern presidential transition anywhere near as chaotic is the most recent. Yet, while I think Pence is both an incompetent and a spineless toady, I have no reason to disbelieve his account of the matter.
There have also been accusations of mishandled documents while officials were still on the job. Former Attorney General Alberto Gonzales took home highly sensitive documents that dealt with the National Security Agency’s terrorist surveillance program and the terrorist detainee interrogation program in the late 2000s. Hillary Clinton was investigated for mishandling classified information via a private email server she used as secretary of state.
But rarely are officials punished for these mistakes. That’s in large part because, while federal law does not allow anyone to store classified documents in an unauthorized location, it’s only a prosecutable crime when someone is found to have “knowingly” removed the documents from a proper place.
I have no recollection of the Gonzales matter and have spilled plenty of pixels over the years on the Clinton matter. Suffice it to say, I simultaneously thought her setting up a personal server to conduct official business was egregious and seriously risked spilling secrets to our adversaries but that it was a matter of callous disregard of safe handling rather than malicious.
Mishandled documents are often returned with little fanfare or national news coverage. And there is no one reason for why records are mishandled, as the process of presidential records management plays out amid the chaos at the end of a presidential term and is based mostly a good-faith agreement between the archives and the outgoing administration.
“The National Archives has historically worked under an honor system with any administration,” said Tim Naftali, the first director of the Richard Nixon Presidential Library and Museum. “They work for the president and the vice president and they have partnerships with all these former presidents and vice presidents.”
Honor systems rely on honorable people. Thankfully, we’ve by and large had them at the highest levels. Even those, such as Nixon and Bill Clinton, whose character I would question in other matters, were at the end of the day patriots. They would shamelessly lie to further their political interests but could be trusted with the nation’s secrets.
The White House counsel’s office declined to comment Tuesday on whether Biden would order a review of how classified documents are handled across the government in response to the latest discoveries.
The power to change or amend how classified documents are handled rests largely with the president. Biden, who is actively under investigation, is not likely to instigate a review or order any changes in procedure because it could be seen as a political move meant to better his own circumstances.
That’s certainly true. Beyond that, it’s not quite clear to me how we would change the law with regard to the very highest officials (say, Cabinet Secretaries and above). Even if we decided they ought be held to the same standards as low-level intelligence analysts, there’s simply no appetite to hold them accountable in the same way.
