January 25, 2023

Trump, Biden, and the Double Standard on Mishandling Classified Documents

Despite the breathless obsession with how the president and the former president mishandled classified documents, neither man is likely to face serious legal consequences.

Ever since it transpired that President Biden, like his predecessor, had improperly retained classified government documents, both men’s claques have been busily explaining why the other guy’s transgression is worse.

Team Biden’s line is that the president’s legal team has fully cooperated with law enforcement and the National Archives, whereas Donald Trump obstinately refused to return the classified documents he had taken, even after being subpoenaed. The former president’s loyalists, on the other hand, point out that the White House discovered on Nov. 2 that Biden had improperly taken classified documents when his term as vice president ended but suppressed the information for 68 days. Trump, to his discredit, stashed thousands of documents in the storage room at Mar-a-Lago and it took an FBI raid to recover them. Biden, to his discredit, insists he has “no regrets” about leaving classified material in multiple locations, including the garage of his Delaware home.

When he was asked on “60 Minutes” last September to comment on Trump’s hoarding of top-secret documents, the president professed to be aghast that “anyone could be that irresponsible.” Now others are saying much the same about Biden.

On Tuesday, meanwhile, former vice president Mike Pence notified Congress that “a small number” of documents bearing classified markings were found in his Indiana home.

Attorney General Merrick Garland has appointed special counsels to investigate the Trump and Biden cases. But it’s not too early to draw some obvious conclusions.

To begin with, it seems evident that both men broke the law. Under Section 1924 of Title 18 of the US Code, it is a crime for any federal officer or employee to “knowingly remove” documents containing “classified information of the United States” and to “retain such documents or materials at an unauthorized location.” There are differences between the two cases, but the language of the statute is clear. Trump and Biden plainly did what it forbids.

Second, neither the president nor the former president has to worry about facing a serious criminal penalty. Big shots in these cases never do.

“Carelessness with government secrets has become endemic in official Washington,” observed The Washington Post this week. In recent years, highly classified government material has been mishandled by numerous senior officials, including former attorney general Alberto Gonzales, former CIA directors John Deutch and David Petraeus, former national security adviser Sandy Berger, and at least two former secretaries of state, Colin Powell and Hillary Clinton. None of them was punished with anything more severe than a temporary loss of security clearance or a fine. Petraeus, who supplied classified material to a former mistress who was writing his biography, paid the heaviest price: He resigned from the CIA and was charged a $100,000 penalty.

Getting caught with classified government documents earns prison time only when the offender is a low-level federal employee or contractor. Just ask Asia Lavarello, Ahmedelhadi Serageldin, Harold Martin III, Reynaldo Regis, Benjamin Bishop, or Reality Winner. Their names are little known. But all of them ended up behind bars for doing what numerous high officials have gotten away with.

Perhaps the most important point is this: Even without any wrongful intent, it is inevitable that government documents classified as secret will be mishandled or misappropriated for the simple reason that there are way too many of them.

The amount of federal paperwork classified as confidential each year is staggering. At a congressional hearing in 2004, then-Representative Chris Shays noted that in the previous year, at least 14 million documents had been placed off-limits by the nearly 4,000 government officials authorized to do so.

“No one can say with any degree of certainty how much is classified, how much needs to be declassified, or whether the nation’s real secrets can be adequately protected in a system so bloated,” Shays said. “This much we know: There are too many secrets.”

With the coming of the digital era, the already vast sea of classified documents swelled into what the director of the Information Security Oversight Office, a division of the National Archives, calls a “tsunami.” The 14 million documents a year being designated as secret in 2004 has metastasized into more than 50 million a year today, according to Oona Hathaway, a Yale Law School professor and former special counsel to the Pentagon. A maxim attributed to Frederick the Great holds that “he who protects everything, protects nothing.” The Prussian king was referring to battlefield strategy, but the principle applies equally to government paperwork. The annual classification of tens of millions of documents, most of which do not deal with ultrasensitive national security secrets, serves mostly to shelter the political class from scrutiny and to keep from the public information it has a right to see.

So far there’s no indication that any actual harm was caused by the cavalier manner in which Trump and Biden made off with classified material. Politics aside, it may all amount to a big nothing. The same can’t be said of Washington’s bloated classification process. The breathless obsession with who mishandled classified government documents — and how, where, and when — makes headlines. What really deserves attention is why the documents were classified in the first place.

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