The issues with unauthorized possession of classified documents on the part of both Donald Trump and Joe Biden make one thing perfectly clear... Operating the United States as a national security state has become untenable.
It's worthwhile to get one point across up front. This is not an exercise in "whataboutism" now that a Democrat has been found to have removed classified materials and possessed them unlawfully and housed them in insecure, unlawful facilities. Laws are laws and whatever those laws specify as punishment for such actions once proven should be applied equally to anyone violating them. Even if the offender is a former President or a former Vice President who is now President.
The problem here is that the actions of Trump and Biden clearly reflect that the larger constructs of law and procedure around the protection of "national security" information are primarily theatre. As more of the official actions of the United States as a country become subject to a shroud of secrecy under the guise of thwarting terrorism, thwarting international financial crimes that support terrorism or hiding first / second / third / nth level blowback from prior top secret actions taken decades ago in the name of security and freedom, the ability of citizens to provide informed consent to the actions taken by the government becomes seriously compromised. In fiscal year 2022, a total of $85 billion dollars was appropriated for the National Intelligence Program and Military Intelligence Program. That sounds like nothing in a $21 trillion dollar economy or $6.3 trillion dollar federal budget -- it's 1.3 percent of the budget -- but that spending involves roughly 30,000 employees in the NSA and 21,500 employees in the CIA.
In the cases of Trump and Biden, no partisan on either side could legitimately argue with a straight face that one case involves the actor (Trump or Biden or some staffer) consciously sifting through a pile of sensitive documents saying take / leave / leave / take / take / take while the other just represents an actor indiscriminately sweeping an entire tabletop of documents into a box and putting it in a van on load-out day when leaving office. These cases indicate the entire concept of document security is routinely treated with a nod and a wink by senior officials (elected or appointed) and their staffs. For these "moving day" packing offenses to have occured, it has to be a ROUTINE occurrence for sensitive printed materials shared in sensitive meetings in secured rooms to be REMOVED by the participants for follow-up reading at night, etc. That's not how the process is supposed to work.
Most Americans likely assume "national security" secrets are protected by laws with language defining a taxonomy of offenses similar to this:
- stealing classified documents and sharing with foreign actors
- sharing information within classified documents with foreign actors
- stealing classified documents and sharing with domestic actors
- sharing information within classified documents with domestic actors
- viewing classified documents above one's clearance level and sharing the info (foreign or domestic)
- viewing classified documents above one's clearance level - even if the info is not shared
- removing classified documents from secured facilities - even if the actor has matching clearance, even if the documents are not shared and even if they are later returned
The actual laws covering the protection and disclosure of national security information can be found in the following sections of the US code:
Unauthorized Removal / Retention - US Code, Title 18, Section 1924 at https://www.law.cornell.edu/uscode/text/18/1924
(a) Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than five years, or both.
(b) For purposes of this section, the provision of documents and materials to the Congress shall not constitute an offense under subsection (a).
(c) In this section, the term “classified information of the United States” means information originated, owned, or possessed by the United States Government concerning the national defense or foreign relations of the United States that has been determined pursuant to law or Executive order to require protection against unauthorized disclosure in the interests of national security.
Disclosure -- US Code, Title 50, Subchapter IV, Section 3121 at https://www.law.cornell.edu/uscode/text/50/3121
It's worth highlighting the most important aspects of these laws.(a) Disclosure of information by persons having or having had access to classified information that identifies covert agent
Whoever, having or having had authorized access to classified information that identifies a covert agent, intentionally discloses any information identifying such covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such covert agent and that the United States is taking affirmative measures to conceal such covert agent’s intelligence relationship to the United States, shall be fined under title 18 or imprisoned not more than 15 years, or both.
(b) Disclosure of information by persons who learn identity of covert agents as result of having access to classified information
Whoever, as a result of having authorized access to classified information, learns the identity of a covert agent and intentionally discloses any information identifying such covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such covert agent and that the United States is taking affirmative measures to conceal such covert agent’s intelligence relationship to the United States, shall be fined under title 18 or imprisoned not more than 10 years, or both.
(c) Disclosure of information by persons in course of pattern of activities intended to identify and expose covert agents
Whoever, in the course of a pattern of activities intended to identify and expose covert agents and with reason to believe that such activities would impair or impede the foreign intelligence activities of the United States, discloses any information that identifies an individual as a covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such individual and that the United States is taking affirmative measures to conceal such individual’s classified intelligence relationship to the United States, shall be fined under title 18 or imprisoned not more than three years, or both.
(d) Imposition of consecutive sentences
A term of imprisonment imposed under this section shall be consecutive to any other sentence of imprisonment.
- Each clause begins with the word WHOEVER. One even further explicitly states the law applies to anyone contacting the material by virtue of their OFFICE. There is no exemption for senior leaders, not even the President.
- Title 18 pertaining to removal / retention was last amended in 2018 during the Trump Administration as an attempt to raise the bar for future events in response to Hillary Clinton housing emails flagged as confidential on a non-government private server during her tenure as Secretary of State.
- ALL of the clauses related to disclosure include a requirement to demonstrate INTENT to disclose any sensitive information, implying that INADVERTENT disclosure itself does not trigger criminal sanctions.
- The clauses related to removal / retention include language requiring KNOWLEDGE of the removal of sensitive material outside a properly secured context, implying "accidental" removal of a document would not trigger criminal sanctions.
- The clauses related to removal / retention also include language requiring INTENT to retain the documents outside properly approved facilities. As discussed below, this requirement creates enormous prosecutorial exposure, given past cases.
Most Americans assume these laws are interpreted as "get caught with a doc above your grade or get caught with a doc at your grade outside authorized facilities and proceed to jail - do not pass go." That seems to be the way most professionals in contact with this material interpret the law as well, and for good reason. Numerous military, intelligence and State Department officials, employees and contractors have been prosecuted and convicted for improper handling of sensitive materials. Penalties included loss of security clearance, fines and jail time.
https://www.voanews.com/a/fbi-justice-department-routinely-prosecute-misuse-of-classified-documents/6694887.htmlThe examples in the above article provide better context on how prosecutors and courts interpret the language in these statutes. Certainly DISCLOSURE of information to outside parties will assure prosecution, and rightly so. However, disclosure to other parties of such information is NOT a requirement to face charges under the removal / retention statute. Even for removal / retention, these cases contain no example of a scenario in which sensitive materials were identified as missing, located under the control of an actor outside secure facilities, determined to be an "accidental" removal by sloppy housekeeping and still triggered prosecution. Each of these cases involved an actor who copied individual files, stockpiled entire hard drives and CD ROM media or had transcribed sensitive information to paper and accumulated it in unauthorized locations (usually their home). That's a pretty high bar of intent.
At this point, short of discovery of actual DISCLOSURE of materials to third party (something not yet cited publicly in either case), the fate of the Trump and Biden cases will come down to interpretations of "intent" under the removal / retention laws. Given the surprisingly lax interpretation of intent, focusing on "moving day" as the point of the crime when documents in a VP office or Oval Office / White House residence were swept en masse into boxes at the end of a term will likely result in a finding of no intent. However, for sloppiness on moving day to even be a problem, the documents involved were ALREADY located outside authorized secure facilities by being present in private quarters or administrative offices and accumulating over time. That could be interpreted as "intent to retain" outside an authorized facility based on multiple documents reflecting a pattern of removing documents outside secure facilities. It would seem Trump's exposure to "intent" is higher due to his public statements that the documents involved in his case were his -- they were not.
It seems likely that no office space of the Vice President qualifies as a SCIF so any sensitive material packed by VP Biden staffers out of VP offices reflected failures at prior points to leave such materials inside secure facilities. In the case of the President, the Oval Office likely counts as a SCIF in addition to the Situation Room but it isn't clear what other areas of the West Wing are treated as a SCIF. Certainly, the rest of the White House should NOT be treated as such. If documents were packed directly out of the Oval Office, clearly those doing the packing should have been trained in recognizing sensitive materials and leaving them in the room or immediately providing it as required under separate law to the National Archives. For other documents packed from other locations in the White House, those documents again reflect a continued pattern of prior behavior taking sensitive material from secured facilities and retaining it in insecure locations, in violation of the law.
So if some of the nation's top secrets are winding up in a locked storeroom at Mar-a-Lago where the extra ballroom chairs are kept or in Joe's locked garage with his Corvette, are these laws regarding disclosure and removal / retention of national security secrets functioning as a deterrent? The public record doesn't (yet) provide examples to support it, but it seems highly unlikely that a wider range of people with access have not engaged in similar behavior if we've already found a VP, a President, a general and a senior national security advisor grossly mishandling top secrets. If it is common for those with access to give these laws lip service, that means these laws aren't going unenforced, they're just being enforced SELECTIVELY, making them a tool for repression and persecution. If someone with a conscience comes across a "secret" so counter to the country's stated values and leaks it, THAT gets prosecuted. If DOZENS (HUNDREDS?) of elected and appointed officials skim off copies of interesting secrets, co-mingle them with the daily detritus of constituent letters, meeting minutes and personal business then take them home for their post-government influence peddling consulting career, THAT seems perfectly acceptable.
What are the next possible steps at this point?
- Prosecute, convict and punish Trump and Biden equally for illegal removing of classified documents and illegal housing of classified documents (***).
- If it can be confirmed information in the documents has not been actually compromised, decline prosecution of Trump and Biden for removal / housing but retroactively review prior cases and pardon those offenders with identical circumstances as well.
- Amend these statutes to require an official from the National Archives to be present on load-out day for those exiting office with top security clearances.
- Reset expectations across the Administrative and Legislative branches by conducting mandatory training for staff regarding obligations under these laws and alter meeting protocols to explicitly collect sensitive materials at the conclusion of meetings.
*** Note that as of this writing, the Trump and Biden scenarios are NOT legally identical in all aspects. As of January 15, 2023,
- there is no sign ex-VP Biden or current President Biden rejected requests to return documents requested by responsible agencies or the National Archives
- there is no sign ex-VP Biden or current President Biden submitted sworn affidavits falsely stating full compliance with any pre-subpoena request for the return of documents
- there is no sign ex-VP Biden or current President Biden submitted sworn affidavits falsely stating full compliance with any actual subpoena-backed request for the return of documents
- there is no sign ex-VP Biden or current President Biden made a public claim of ownership of any sensitive documents, which weakens any argument for claiming inadvertent removal and bolsters a prosecutor's claim that the actor KNEW they were removing documents in violation of the law
WTH
