Trump’s Theft Of Classified Documents And Joe Biden’s Forgetfulness Are Not The Same

Former President Donald Trump arrives to speak at an event on Nov. 18 at Mar-a-Lago. Earlier in the day, Attorney General Merrick Garland named a special counsel to oversee the Justice Department's investigation into the presence of classified documents at Trump's Florida estate.
Former President Donald Trump arrives to speak at an event on Nov. 18 at Mar-a-Lago. Earlier in the day, Attorney General Merrick Garland named a special counsel to oversee the Justice Department's investigation into the presence of classified documents at Trump's Florida estate.

Former President Donald Trump arrives to speak at an event on Nov. 18 at Mar-a-Lago. Earlier in the day, Attorney General Merrick Garland named a special counsel to oversee the Justice Department's investigation into the presence of classified documents at Trump's Florida estate.

It’s both frustrating and dispiriting that political partisanship prevents us from seeing the forest through the trees.

To further mangle that metaphor, it’s astonishing that some can’t tell the difference between one tree and another.

With the document drama now surrounding President Joe Biden, here’s what you should know:

  1. Comparing Biden’s situation to former President Donald Trump’s is specious. The conditions are similar but not the same.

  2. The government churns out way too many classified documents, millions every year, largely because it’s too easy to get classification and too hard for those with oversight to determine if that secrecy is warranted.

  3. Vast numbers of those documents are hardly a threat to national security and needn’t be kept secret, while far too many documents that should be made public aren’t.

  4. Such secrecy keeps voters in the dark, neutering their ability to hold their government accountable. This is not good for democracy or national security. 

A Specious Comparison

Let’s dispatch the obvious.

If I’m renting a room in your home and decide to move out and I remove things from your home inadvertently but give them back, is that different from intentionally removing things from your home and refusing to return them? So much so that you have to call the police to get them back?

That’s the difference between what Biden is dealing with and what Trump did. One person voluntarily notified the National Archives about the documents and arranged for their return; the other person fought the National Archives for months and refused to return anything, even ignoring a subpoena from the Justice Department. The Justice Department was left with no choice but to send the FBI to seize those documents.

To put it in stark terms, we’re talking about someone with 50 years in government and 20 found documents versus four years in government and more than 300 seized documents.

People have argued that because Trump was president, he had a security clearance above and beyond Biden’s when he was Barack Obama’s vice president. False. Executive orders from both the Bush and Obama eras clearly state that, just like presidents, vice presidents have the authority to classify and declassify information, as do agency heads and other designated government officials. There are lots of “designees.” Multiple media outlets have debunked the false claim, but people continue to peddle it, including members of Congress.

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Apparently, this person, who is in government, doesn’t know what the government is doing even when the government makes public what it’s doing.

Further, chairs and ranking members of Senate committees routinely have security clearance and access to sensitive documents. Biden, you may recall, spent much of his congressional tenure either as chair or ranking member of the Senate Foreign Relations Committee and the Senate Judiciary Committee, which may explain why some discovered documents date back to his time as a senator. Both committees often address matters that are classified in nature.

Second, how is this “security clearance” argument even relevant if the documents didn’t belong in your possession in the first place and/or you refused to return them?

Third, presidents can’t just willy-nilly declassify documents. Declassification requires a formal process that’s documented contemporaneously in writing and communicated to other executive branch officials. The agency that initially classified the information has to sign off on declassification. If the agency refuses for whatever reason, the document remains classified.

Still, serious questions remain about what has been an evolvingcontroversy for the Biden administration. For example, why was the discovery of documents found six days before the midterm elections not made public until two months later? Why didn’t anyone in the government know that Biden had these documents for all those years?

We know documents ended up where they shouldn’t have. We don’t know how or who took what where. We don’t know what type of classified information was found or if it even deserved secrecy. Until the Justice Department completes its investigation, jumping to conclusions will be a useless exercise.

One thing is certain: When a sitting president is being investigated by his own Justice Department and an ex-president is facing the threat of prosecution, it’s a clear sign the system is out of control.

An image in a court filing by the Department of Justice on Aug. 30, 2022, shows a photo of documents seized during the Aug. 8 search at Donald Trump's Mar-a-Lago estate in Florida. The discovery of classified documents at the home of former Vice President Mike Pence is scrambling the blame game in Washington. Now, lawmakers from both parties seem united in frustration with the string of mishaps in the handling of the U.S. government's secrets.
An image in a court filing by the Department of Justice on Aug. 30, 2022, shows a photo of documents seized during the Aug. 8 search at Donald Trump's Mar-a-Lago estate in Florida. The discovery of classified documents at the home of former Vice President Mike Pence is scrambling the blame game in Washington. Now, lawmakers from both parties seem united in frustration with the string of mishaps in the handling of the U.S. government's secrets.

An image in a court filing by the Department of Justice on Aug. 30, 2022, shows a photo of documents seized during the Aug. 8 search at Donald Trump's Mar-a-Lago estate in Florida. The discovery of classified documents at the home of former Vice President Mike Pence is scrambling the blame game in Washington. Now, lawmakers from both parties seem united in frustration with the string of mishaps in the handling of the U.S. government's secrets.

Original Sin

One reason classified records end up in places where they shouldn’t is that there are far too many of them.

Two opposing forces are at work in what can be called Washington’s “national security complex.” One declares records secret, what’s called Original Classification Authority. The other reviews those records to determine what is safe to release for public consumption. A classification engine and a declassification one.

Unfortunately, the first engine completely overwhelms the second. Result: Far too much in Washington is kept secret that isn’t secret at all, and secrets that should be divulged remain hidden from the public.

Matthew Connelly is a professor of history at Columbia University. In 2012, when he began his research, 95 million secrets had been created. That year alone.

“Three times every second, someone somewhere in government tried to classify something,” Connelly told HuffPost.

And today?

“No one knows,” Connelly said. The Information Security Oversight Office (ISOO), the government watchdog over the security classification system, “has given up trying to count how many secrets the government creates each year.”

They’ve given up because they can’t keep up. “We can no longer keep our heads above the tsunami,” an agency report declared.

In Washington, anyone with security clearance can declare anything classified. More than 4 million people have security clearance, from the CIA to the Commerce Department. The number of people at the ISOO who review records to determine if they should stay secret or be made public: 2,000. They are so overwhelmed they have gone to a default position: Instead of reviewing everything, which they must do one page at a time, they declare everything secret, even when it’s not. Things like emails about lunch plans, hotel reservations, trite text messages and bland video conferences. Officials estimate that as much as 90% of classified documents could safely be released.

And instead of being able to assess how long each “secret” should remain secret until it’s safe to release to the public, they just choose the maximum number of years.

This has consequences. The sheer volume of secrets makes it difficult to keep track of everything. Do the agencies know what happens to all the classified material they send to the White House and various congressional committees?

“You would think so,” Connelly said. Apparently they don’t. It’s easy to see why documents end up where they shouldn’t as often as they do and why such misplacements go undiscovered for weeks, months and even years. No one knows where everything is because no one can keep track of it all. They don’t even know how much there is to keep track of.

The problem, the “original sin,” if you will, isn’t classification. It’s over-classification.

“The more material that’s classified,” Connelly said, “the more it can get lost or end up at someone’s office, or residence or in the wrong hands, and some of that could be sensitive.”

Burying officials with mountains of fake secrets thus puts real secrets at risk. In other words, it’s easier to keep secrets secret when you have fewer secrets to keep. Just ask Rep. George Santos.

In Washington’s dysfunctional declassification system, more secrecy means less security.

A Hasty Exit

How hectic is moving day when an administration leaves office?

Those who have covered this aspect of the Executive Branch say it has a definitechoreography

Items get loaded into boxes, which get loaded into vans and then military cargo planes that carry everything to the former president’s new residence. With only two elevators, it’s organized chaos.

Staff secretaries are tasked with managing documents, and White House counsel is supposed to ensure that everyone follows protocols of the Presidential Records Act. But that isn’t always the case. Between them, aides and perhaps college interns, the foot traffic and paper shuffling can create a frantic atmosphere. You can picture staffers hastily boxing everything up, not sure what items go in which boxes, and then wondering where those boxes should be sent. A president or vice president wouldn’t be overseeing any of this (though Trump reportedly did a lot of his own packing as he prepared to leave the White House).

“It appears that, as Biden’s office was being packed up at the end of Obama’s Presidency, some classified information got commingled with other material,” former Obama White House counsel Neil Eggleston toldThe New Yorker.

“For example, the classified materials found at Biden’s home included family documents about his son Beau Biden’s funeral arrangements and condolence letters,” Eggleston said.

Sure enough, classified documents have now been found at the home of former Vice President Mike Pence. He had no idea about the documents until a search of his home last week, according to his attorney. No word on what prompted the search, but the materials came from the the vice presidential residence at the Naval Observatory in Washington, “the packing of which would not have been handled by the vice president’s office or its lawyers.”

The Bidens also lived at the Naval Observatory residence when he was vice president.

When asked last August if he had any such documents in his possession, Pence said, “No, not to my knowledge.”

It’s easy to see how things can get lost, misplaced and forgotten.

It’s like when a family moves to a new home and has a moving company pack up all the belongings. It’s never perfect. That’s why you open a box in your new home and find the wine glasses with the spatulas and your kid’s teddy bear. Who did that? The moving guys did. They were busy, they were packing, they threw something in at the last minute.

Over the years, it’s likely many lawmakers with high-security clearances in both the executive and legislative branches have inadvertently taken classified documents home or to off-site offices.

 Attorney General Merrick Garland (right) is joined by John Lausch, the U.S. attorney for the Northern District of Illinois, at a Jan. 12 news conference at the Justice Department to announce the appointment of a special counsel to investigate the discovery of classified documents at President Joe Biden home and a former office.
Attorney General Merrick Garland (right) is joined by John Lausch, the U.S. attorney for the Northern District of Illinois, at a Jan. 12 news conference at the Justice Department to announce the appointment of a special counsel to investigate the discovery of classified documents at President Joe Biden home and a former office.

Attorney General Merrick Garland (right) is joined by John Lausch, the U.S. attorney for the Northern District of Illinois, at a Jan. 12 news conference at the Justice Department to announce the appointment of a special counsel to investigate the discovery of classified documents at President Joe Biden home and a former office.

The Real Scandal

Secrecy in Washington is power, but it’s also protection. Records are often classified simply to protect the reputations of the officials involved. They’re not classified as much as they are hidden ― hidden from us.

In 1948, the Air Forceconducted a secret research project in electronics. Part of the bomber crew included three civilians, RCA technicians on board to monitor the sophisticated equipment. The plane ran into trouble and crashed. Most of the crew members bailed out, but the technicians died.

Family members sued, claiming the deaths were because of Air Force negligence. But the Air Force refused to release the accident report the families needed to pursue their case, saying it was a matter of national security. The lawsuit eventually made it to the U.S. Supreme Court, which sided with the Air Force in what became judicial precedent. Henceforth, judges would not even examine records government officials claimed contained national security secrets.

When the accident report was finally released — a descendant discovered it accidentally in 2000 while surfing online — it contained no national security information. There was, however, plenty of information about Air Force negligence. No one briefed the technicians on evacuation procedures, and the plane itself, a B-29 bomber, wasn’t properly outfitted for the research involved. This was the secret the Air Force kept from the public, which ultimately defrauded those widows.

With the accident report in their possession, heirs of the victims tried to reopen the case. Without comment, the Supreme Court refused to revisit it. Fifty years later, the court continued to abide by United States v. Reynolds, a decision based on falsehoods that denied the public its right to know and denied widows information, a decent settlement and emotional closure.

It’s called staré decisis, the Latin term for giving deference to past court decisions rather than rethinking legal principles anew.

Yet the current court had no problem overturning Roe v. Wade last summer. It seems some lives are not as precious as others.

Even worse, consider a 1974 decision by the Joint Chiefs of Staff to destroy all the minutes and transcripts of every meeting they ever had going back to 1947.

Why? The Freedom of Information Act. Passed in 1966, Congress added new pro-disclosure amendments that strengthened it. Were the Joint Chiefs just playing CYA?

Only 30 pages of notes survived. Within those pages: Operation Northwoods, a 1962 plan to carry out attacks on American citizens and create public support to go to war against Cuba and Fidel Castro. “We could blow up a U.S. ship in Guantanamo Bay and blame Cuba,” the notes suggested.

A modern-day version of “Remember the Maine.”

One idea proposed using the potential death of astronaut John Glenn during the first attempt to put an American into orbit as a false pretext for war with Cuba.

And that’s just in the notes that survived. One wonders what horrifying information was destroyed.

President John F. Kennedy rejected the plan, but it went undisclosed for 40 years until uncovered by investigative reporter James Bamford.

You understand what happened here? This is the government — your government — proposing to kill American citizens as a pretext for going to war. And you wonder if all that hype 20 years ago wasn’t a similar pretext to invade Iraq.

Was Operation Northwoods kept secret as a matter of national security or to avoid a national disgrace?

In 1978, the Joint Chiefs essentially stopped keeping any such records, an example of not just destroying records but also choosing not to create them.

Mobsters call this omerta, the code of silence.

It’s one of several such revelations Connelly describes in his forthcoming book, ”The Declassification Engine: What History Reveals About America’s Top Secrets.”

“There are fewer records available for studying the history of the 1970s than there are from the 1940s,” Connelly said. “The review and release of records has almost ground to a halt.”

For historians, that’s a tragedy. For the rest of us, it’s an abomination. The more things are hidden or destroyed, the harder it is to research and catalog our history to learn who we were so we can know who we are and who we can be.

Imagine how the course of history might have changed had Operation Northwoods been made public in 1962 instead of 1993. Heads would have rolled. Members of the Joint Chiefs would have resigned in disgrace, as they should have. They kept things secret not because it was a threat to national security but because it was a threat to job security. 

The Threat To Democracy

This is what happens when you lack transparency. You are accountable to no one. Transparency is critical for a democracy to survive, but you cannot hold your government accountable if you don’t know what your government is doing. Rather than transparency, our nation’s entire classification industry enables, perhaps even encourages, opacity.

That is the critical takeaway in all this, not the Biden mess or what Trump did. Keep everything secret so nobody finds out nuthin’ about anything.

President Joe Biden talks with reporters Friday after speaking in the East Room of the White House. Senior Democratic lawmakers turned sharply more critical Sunday of Biden's handling of classified materials after the FBI discovered additional items with classified markings at Biden's home in Delaware.
President Joe Biden talks with reporters Friday after speaking in the East Room of the White House. Senior Democratic lawmakers turned sharply more critical Sunday of Biden's handling of classified materials after the FBI discovered additional items with classified markings at Biden's home in Delaware.

President Joe Biden talks with reporters Friday after speaking in the East Room of the White House. Senior Democratic lawmakers turned sharply more critical Sunday of Biden's handling of classified materials after the FBI discovered additional items with classified markings at Biden's home in Delaware.

A Solution Denied

Is there a fix for any of this?

Professor Connelly and data scientists at Columbia University came up with a system using artificial intelligence and machine learning to develop algorithms to make out the patterns and practices of reviewing and releasing materials. From that, you can figure out what the government is least likely to reveal or what they’re most likely to redact.

They tested it on some 5 million government documents, plus records from international organizations like NATO and the World Bank.

It worked. 

They went to Washington to pitch their idea to officials from the National Archives, the CIA, the Office of National Intelligence and the State Department.

The response: We love this idea, we love the technology, we need to use it, but…

No can do. They don’t have the budget, they said. There’s no funding to pay for it.

They went to the Intelligence Advanced Research Projects Activity. Think James Bond and Q Branch. That’s IARPA. It’s tasked with outfitting the American intelligence community with the highest-tech information-gathering gadgetry.

What happened? It had no interest. It liked the algorithm idea but only for classifying information, not declassifying it. It had zero interest in supporting the technology to declassify material or sort materials that didn’t need to be classified.

Why? Because it would be an insufficient return on investment.

What IARPA was thinking about was how little the government spends on declassification.

The government spends about $100 million annually to assess materials for declassification, but it spends $18 billion on classifying information and trying to protect it.

What IARPA wasn’t thinking about: the value of government accountability ― not to them, perhaps, but to citizens. 

Epilogue

And this is the issue at its core.

Congress could appropriate the funding to develop a risk-management approach to managing national security information, thus making transparency a priority. But who knows how many lawmakers would oppose such funding, fearing their indiscretions or worse would come to light? The people most invested in state secrecy are the ones who are most determined to cling to their secrets.

It’s easy, therefore, to imagine that the Supreme Court uncovered the identity of the person who leaked the draft of its June opinion in Dobbs v. Jackson Women’s Health Organization but is keeping it quiet to avoid a national embarrassment or perhaps even the impeachment of a justice.

Imagine that: An institution cloaked in secrecy can’t figure out who leaked a secret. Or won’t say. I’ll take “Withholding Evidence” for a thousand, Alex.

Can we expect citizens to trust members of government or its institutions when neither deserves trust at all?

We can all appreciate secrecy where it makes sense. Surely lawmakers want to protect national security. But I suspect many lawmakers, bureaucrats and functionaries also want to exploit a dysfunctional system to protect their reputations.

A recent poll found that two-thirds of Americans support an investigation into Biden’s document issues. In other words, we want an investigation that provides transparency so we can apply accountability.

It’s a false promise. In America today, accountability is selective. We hold to account whom we choose. That’s why Republicans are screaming about Biden’s possession of documents but remain silent about Trump’s. And vice versa.

Accountability requires more than transparency; it requires objectivity. This raises a far-reaching question, not just about our system but about ourselves: Do we even care about accountability? Or do we only care about it when it suits our ideological prejudices?

I doubt most of us can be objective enough to answer that question honestly. In fact, the folks in Washington are probably counting on it.