Behold the latest manufactured screaming scandal-fit about finding some documents with classification markings in old files of Joe Biden’s, at an old office he used after being VP and at his residence. The false equivalencies are flying thick and fast between what happened with Joe Biden and Trump’s documents at Mar-A-Lago and other places. Thing is, there is a key aspect of this scandal that I haven’t seen in the media at all, and that is critical. It has to do with how classified data is actually handled, especially at the cabinet and VP levels.
Let’s be clear on a key point here: Merrick Garland was certainly correct to appoint a special counsel to investigate the clearly multiple mishandling cases of classified documents. Some folks are probably going to get in trouble. Is this a threat to Joe Biden’s presidency? Despite what republicans are fervently hoping, almost certainly not.
To start, there are three key facts that we need to get out of the way:
First, government record keeping laws are complex. Exactly which drafts of a document need preservation for what time period, what emails, what markings and collection on what schedule is not a trivial rubric. Agencies and government organizations maintain professional record managers on their staff who oversee such activities. Some systems, such as email backups, are automated and mostly seamless to the workforce. The point is, that for major recordkeeping or government property violations to take place, those systems need to be actively subverted.
Second, not all classified documents are copy controlled, but many are. The government classifies a LOT of stuff. At the most secure end of the spectrum, such as Secure Compartmentalized Information (SCI), Originator Controlled (ORCON), or Special Access Program (SAP), documents are copy controlled. That means that the document originator has a list of every copy of the data. Often that means that the originator is the only one who disseminates the information. However, not all documents are like that. Some documents have broad need to know and are circulated rather widely within the cleared community. (An example would be assessments of enemy weapons systems and tactics. Those would be circulated among military planners, defense weapons labs, combat units, and anyone else who might be fighting them, supporting the fight, developing weapons to defeat or defend against them… you get the idea.) Another category of information that is isn’t copy controlled is highly perishable information. Something like a draft itinerary for a VP’s trip would be highly classified for security reasons until the trip is announced.
Third, a significant number of people in the US government, including the President, VP, numerous cabinet members, and congresspeople, don’t have security clearances in the sense that most government employees do. The President, for example, is elected by provisions in the constitution, and therefore being granted a security clearance isn’t a condition of employment. Since the executive branch which has and handles classified information works for the President, they set the rules. The VP, as the President’s deputy, is in a similar situation. Congresspeople and cabinet members are are in their positions subject to specific provisions in law, and either through constitutional oversight authority or the relevant laws have access to classified information via their position.
What these three facts mean is that folks in those positions are only minimally responsible for handling classified information that comes across their desks. They have staffers whose job is to manage things like that for them. They don’t do daily sign offs on their safes, they don’t prepare document folders for hard copy, and they don’t manage things like government record tracking.
When it comes time for someone like that to leave office, it is a staffer who does the record checklist, verifies classified documents have been turned in, and staffers who box up the office to move. Staffers go through the copy-controlled document list and other government property list and make sure everything is accounted for and turned in. The IT organization pulls records off of the government issues computers to meet record retention laws, etc.
This process happens automatically during the transition period. Locating and turning in copy controlled documents is one of the necessary steps. This is how NARA knew that Trump had retained nuclear intelligence secrets. Those documents were copy controlled, and NARA knew that they hadn’t been turned in. Almost by definition,there could not have been copy controlled documents at Joe Biden’s house since the document originator would insist they either be turned in, or be stored in General Services Administration (GSA) approved containers under proper security.
So how is the situation with Joe Biden different from Donald Trump’s?
If it isn’t becoming obvious at this point, here is a true story from when I was much younger. I was working as a summer intern with a major defense contractor. I came into my office one Monday morning to find an eight inch tall stack of folders on my desk, the top one proudly bearing its TOP SECRET cover stamp on it. Once I convinced my heart to stop doing its best impression of a millisecond pulsar, I left my office and sought out the first person I knew down the hall who had a TS clearance. It turns out that some dingus had stuck an empty stack of classified folders in my office. But what if there had been classified documents in there. Should I have gone to jail? I’m confident I would have been just fine.
I didn’t know they were there.
I wasn’t responsible for them being there.
I didn’t want them to be there or try to keep them.
Now let’s compare Donald Trump’s situation at Mar-A-Lago to Joe Biden’s and see which one is closer to my situation. Let’s start with sensitivity of the material:
In Donald Trump’s case, just from the photos released of the cover sheets, analysts have made it clear that the documents are highly classified. There’s simply no way that those documents had their status expire. Those documents were so sensitive, in fact, that they are protected by multiple laws against disclosure, so that even if they had been declassified by executive order, they would still require careful protection and distribution control.
If you read the reporting a little carefully, you’ll notice that a lot of sources have mentioned that a number of classified documents were found in Joe Biden’s garage and an old office. If you look at some of the more careful reporting, you’ll notice that those sources state that the documents were ‘marked as classified’. That distinction is important, because at the VP level, so much material is routinely classified for short periods of time, it is anybody’s guess as to whether or not those documents are still classified, or how many. Since the documents were not copy controlled (IE, no-one was looking for them), then even if they were actually classified, they were likely on the lower end of the sensitivity spectrum.
Trump had incredibly sensitive material. For Joe Biden’s case, it isn’t at all clear yet. Also note that in Joe Biden’s case we’re talking about 10 ‘documents’, as opposed to Trump having hundreds. There is no equivalency there.
Next step is to move on to the three questions I raised a minute ago.
Donald Trump had thousands of pieces of government property including numerous highly sensitive documents that were on copy-controlled lists. There is plenty of material reporting that NARA was sending regular correspondence to Trump’s lawyers. Not only that, but when the search warrant was executed, the documents were not found in some out-of-the-way storage location, but in drawers and mixed among other personal paraphernalia in daily access locations.
For Joe Biden, after staffers packed up the office, there hasn’t been any reporting that any agency requested return of government property or classified documents. The current reporting indicates that about 10 documents between two locations appear to have been found when Biden’s lawyers were going through boxes for other reasons and notified NARA. It isn’t clear at this point whether Biden had even opened the boxes since leaving the white house.
Side note: One set of documents was in boxes from the Obama administration. Remember that means they sat through the ENTIRE Trump administration. Ask yourself, given how much Trump weaponized the justice department and tried to make hay over Hunter Biden’s laptop… do you think for a moment that if there was evidence of government property or classified documents in Biden’s possession that MAGAs in DOJ or on Fox would have left that story lay? For the political benefit alone they would have hounded Joe for a single paperclip.
Result? Trump clearly knew. It is not at all clear if Joe Biden knew.
Let’s move on to responsibility question.
During the presidential transition, the record keeping process in place for white house documents and government property would happen more or less automatically. Aides and staffers track trips, gifts, and as I noted before, have systems in place for tracking sensitive and classified documents. Under the constitution, the President’s term ends at noon on the appointed day, no exceptions. There is no provision for a delay, not even a national crisis, and the packing up process takes a while.
What this means is that in order for Trump to retain possession of a large number of gifts and sensitive documents, that automatic process had to have been interrupted. Who had the authority to interrupt that process? Not many. Trump, Meadows, maybe a couple others. Point is, there is a high likelihood that Trump personally dictated what would and would not go to Mar-a-Lago, since there simply aren’t that many ways that the sheer volume of government property that was kept vs what was returned would happen without his intent.
In Joe Biden’s case, there is no allegation of retained government property, and only a small number of documents marked classified. With thousands of documents being packed up, and an imperfect system, it’s not crazy to expect a few lower-sensitivity classified documents to slip through the cracks. I bet even Dan Quayle has a few. With an explanation of a simple screw up, it takes no intervention on Biden’s part to have the documents end up where they did. Taking into account how quickly his lawyers turned them over to NARA and got rid of them, suggests that Joe Biden didn’t take any actions to retain them.
On balance then, it is likely that Trump is responsible for the documents ending up at Mar-A-Lago, while in Joe Biden’s case, it appears unlikely.
Last is the intent and retention question:
Given that Donald Trump has argued in court filings that, contrary to law, certain gifts and sensitive documents are his personal property and he should be allowed to keep them. That is as clear evidence you can get that Trump wanted them to be there, and that he wanted to keep them. He rebuffed requests, fought subpoenas, and even took it all the way to the supreme court.
Joe Biden’s team turned the documents over to NARA as fast as they could, and even conducted follow up searches, treating the documents more or less as radioactive waste.
In conclusion, it is clear that Trump knew he had classified materials in his possession, he was likely directly responsible for them being in his possession and he intended to keep them. Joe Biden has not been established to meet even one of those criteria yet, and none of them likely will.