Bear with me if I meander a little today.
I have watched with some amusement the recent accusations of mishandling classified documents leveled against the sitting and former Presidents. My amusement stems not from the possible charges themselves: classified information is a serious thing, and anyone mishandling it should be dealt with accordingly. No, my amusement comes from the way the incidents are portrayed by partisans on both sides and the media (both sides). These people are digging deep into law and regulation to either confirm the similarities or deny the differences. What’s really quite clear to me is the cost not to national security, but to our national sanity.
Classified information, even of the highest nomenclature, is mishandled every day. That is not because, as some suggest, too much is classified. It is because there are very strict rules for who can see what, where they can see or keep it, how it can be transmitted or carried, how it is to be referenced, maintained, and stored. I’ve heard there are a million people with security clearances, and probably a terabyte (1012) of classified information: you do the math, it means somebody is breaking the rules every day.
When that happens, there is an investigation, determining “was it espionage?”, then “was it intentional?”, “was it repeated?”, “who might have accessed it?” and finally “what is the effect of a possible compromise?” In the classic case of someone accidentally leaving a briefcase of classified material in their car parked on a secure compound for a few hours, the answers are all “no/none” and the culprit gets a harsh tongue-lashing. Any answers of “yes” incur ever-increasing punishment, up to and including prison.
Depending, of course, on who the culprit is. See a Marine Lieutenant who leaves a classified document in his car at the Base Exchange is probably looking at a career-ending Article 15 or worse. A CIA Director who releases reams of classified info to his paramour might see a $100k fine, probation, and resign. A Secretary of State who directs her staff to pass classified info over an unsecured server gets a stern rebuke in the middle of a Presidential campaign. And a President? Well, the President is the ultimate classification authority, the “god” of classification, so one can hardly charge a sitting President with misuse of that which he alone controls.
Why the disparate treatment? The punishments are harsher for the more junior personnel because they are designed to keep the legions of lower ranking security clearance holders from making ANY mistakes. When someone junior starts thinking classified material is no big deal, or worse yet someone like Reality Winner or Edward Snowden starts thinking it’s their job to correct US national security policy, very bad things happen. But for very senior people in each administration, it IS their job to do so, so they are handled differently. Frankly, if we treated everyone the same, we would run out of senior personnel pretty fast. No, it’s not fair, but it is the system as it exists, and everybody who is “in” the system knows it.
So former President Trump either took (or directed to be taken) many classified documents which were then stored at Mar-a-lago. He has claimed he declassified them, which is possible, but for which he has produced no proof. What if, as he claims, he could just “think” to make them declassified? Perhaps, but why not follow up and complete the process? And they were still Presidential Records, and thus would still be a violation of the Presidential Records Act. Note that there is no criminal penalty for violating same. So what do we have here, in light of my earlier questions to be answered when there is a mishandling of classified info? There is no public evidence he was trying to sell or give the documents away (we await the FBI report). He seems to have admitted it was intentional, since his “declassified” argument suggests so. It was one, albeit very large, incident. While his storage area at Mar-a-lago was not appropriate for classified documents, it was not generally open to the public and there is little chance anyone accessed them (again, we’ll wait for the FBI report). What this demonstrates is former President Trump’s legendary disdain for the rules, an intentional, highly inappropriate, and casual handling of serious material.
As for the sitting President, much less can be authoritatively said. His personal lawyers found classified documents (from his time as Vice President) when clearing his office at the Penn-Biden Center, a think tank. This raises three questions: Why were his lawyers (lawyers, not gophers) clearing his office six years after he left it, why were there classified documents there at all, and who had access to the empty office? The additional classified material (also allegedly from his time as Vice President) at his home in Delaware presents the same last two questions (the first being answered by the point the FBI agreed to have the President’s lawyers conduct that search). No one knows if then-Mr. Biden brought the documents to either location, or ever had them in his possession. The President has expressed only surprise at the fact of, and the discovery of, the classified information. There is little chance the information was accessed by anyone. What this case demonstrates is classified information was left unsecured at two locations for six years, which is negligence, gross or otherwise. We don’t know who committed it, yet.
Trump-partisans are braying at the hypocrisy of treating the cases differently, but there are differences, most notably, the intentionality of Trump’s case and the willingness to cooperate of Biden’s case. But the very nature of the comparison is what I want to highlight (I know, you’re thinking “Pat, you took me through all that, and NOW you’re getting to your point? Who do you think you are, Arlo Guthrie?”).
I read the Washington Post and the New York Times daily. I watch ABC Nightly News and FoxNews with Bret Baier. I get feeds from the Economist, the Atlantic, the New Republic, the Federalist, the Guardian, and the Wall Street Journal. It is rare to read a report about the recently-discovered Biden case that does not give equal time to the Trump case. Oftentimes, more on Trump and the differences than on the news about Biden itself.
Why? Why compare them? If there is a grizzly murder, does the judge compare it to yesterday’s murders? “My bank robbery netted much less than the one last week, your honor” will never be heard in a courtroom. The events stand on their own, and should be judged that way. In my mind, and with only the facts on hand, Mr. Trump deserves a stiff fine and a public admonishment. Somebody (still to be determined) but possibly President Biden, deserves the same. Why? They both sat atop the classification hierarchy and did not respect it. In neither case is there likely to be damage to national security. One case is short, intentional and adversarial, the other accidental and cooperative but negligently long.
Of course the MAGA hat-wearers are claiming “foul.” Why give them their due? Why diminish in any way the seriousness of the latter Biden case, if it proves to be serious, because Trump is so much more offensive? This has been the case from the beginning with the Trump candidacy, then presidency, and even now once again as a candidate. The investigations, the impeachments, the need to respond to every Trump tweet. At one point in the campaign, I recall candidate Kamala Harris saying “if Donald Trump says to take (the vaccine), I’m not taking it.” Hyperbole, yes, but since it’s Trump, well, ok. Apologies to my MAGA friends and Trump haters everywhere, but everything does not need to be about, or compared to, Trump.
President Biden even set himself up, taking the bait in a 60 Minutes interview when asked what he thought about former President Trump’s stash of secret documents at Mar-a-lago:
This aired in September, but why would the President say such a thing? Why even comment on an open DOJ investigation? Because it’s Trump. So one just has to notice it, be offended by it, comment on it, and denounce it.
Trump is famous for breaking not only the rules, but also the norms of civilized behavior. But here’s a little secret: the first person to ignore a norm does not destroy it. The norm only falls when everyone else says “well he did it, so now . . . “. The reflexive need to put everything into a Trump context ratifies his behavior as the new norm. Which means our norms (like a President taking care of classified material even if he can’t be charged with anything) get replaced with “was it fewer documents than Trump had?”, “were they less classified?”, “did we cooperate more?”, and “were we antagonistic?” Which are lousy norms. Think I’m exagerating? Yesterday, the President of the United States said he has “no regrets” about the classified documents found after being unsecured for six years. None. Zero. Nada. That’s a breathtaking assertion, but hey, it’s not as bad as Trump, right?
Neither of these cases look good for the alleged offenders. Both are serious, but neither (probably) resulted in any damage to national security. Trump is attacking the investigation, belittling the process, and making outlandish claims: par for the course. It appears to me that President Biden will employ a version of the “doddering grandfather” defense (“what? documents? where? huh!”), which would be dismissed as typecasting in Hollywood. We should treat them separately, based on how a former President or Vice President should act with respect to classified information. That is all. Our norms need a rest.
Pat, this is great common-sense commentary on this arcane — for most Americans — issue of how to handle secrecy in a practical situation (actually two situations).
I am teaching a class at James Madison University this Spring on Intelligence and Ethics. We have a unit on secrecy, openness and transparency. I know that this issue of mishandling classified information will come up. Would you be willing to share this blog entry, or a version thereof, with my students? OR, if you still trust technology, would you be interested in a Zoom conversation with them on this point of contention?
Yes of course to either or both. The Blog is openly available, so just point them to it. Let me know a date time and we can work out a zoom, if you like.
Hi Pat. Excellent piece. An analyst might say that you should have put the BLUF (you know “those” standards), but it is a terrific synopsis to leave your readers with. Agatha Christie would be proud: she builds her case and then tells readers on the edge of their seats that the butler killed Col Mustard in the kitchen with a knife because the good colonel cut his wages. I recall many a day of opening my briefcase for a final check before going home (those were the days of only paper). Caught myself more than once. Won’t tell you if I didn’t. As you noted, neither case likely resulted in damage to national security. It’s the handling issue. And the classification system is to blame. Even after computers took over, it was still a blizzard of paper. I should have invested in pulp mills.
On para 9, it was not murder by a grizzly bear, but a grisly murder. Or not! I couldn’t help myself.
Enjoyed it immensely.
Thanks, Jim. Sometimes the creative writer in me takes the pen, and the analyst just sits there shaking his head. And good catch on para 9! Let’s see how to remember this? “A Grizzly murder is always grisly, but most grisly murderers are not Grizzlies!”
Pat, thanks for a couple chuckles and some common sense. Both of these incidents warrant investigations. However, hypothetically speaking, sometimes sloppiness and haste result in the mishandling of classified material. Thank goodness (for the sake of this conversation) that a harsh tongue lashing is often executed.
Thanks, Pat. The thing that bothers me the most about all of these cases (Trump’s, Biden’s, and now Pence’s?) is that, while these specific instances might not have damaged national security (perhaps), they most likely had an overall negative effect in terms of the long-term trust that assets in countries have in ever providing the US with this kind of information in the future. I would think that a US asset on foreign soil would think twice about giving away any information if they are worried that almost anything could end up in someone’s garage next to the Corvette at any given point in time. In that sense, I think all these breaches–no matter what–are a serious threat to national security.
Good point. We don’t know (or perhaps can’t measure) when these incidents cause that lack of trust. It just happens. The only mitigating factor is I doubt other governments are any better!