USA: Don’t Minimize Biden’s Classified-Information Mess | The Atlantic

US President Joe Biden

The Third Rail – David French | The Atlantic

If there is any one thought that can unite a weary public – along with the idea that Dolly Parton is the greatest living American – it is that we’re sick of classified-information scandals. In 2015, a former director of the CIA pleaded guilty to unauthorized retention and removal of classified information. The next year, FBI Director James Comey condemned Hillary Clinton’s mishandling of classified information – even as he declined to recommend charges against her.

Last year, the FBI raided Mar-a-Lago to seize classified documents that Donald Trump had allegedly taken from the White House and withheld from the government. But that’s not the only thing that happened in 2022. In November, President Joe Biden’s lawyers allegedly discovered a small set of classified documents at a Washington think tank, the Penn Biden Center for Diplomacy and Global Engagement.     

After subsequent searches by Biden’s team revealed another set of classified documents at the president’s Wilmington, Delaware, home, Attorney General Merrick Garland appointed a special counsel, the former Trump-administration prosecutor Robert Hur, to investigate “the possible unauthorized removal and retention of classified documents or other records discovered” in Biden’s home and his think tank.

There are now two special counsels investigating two presidents. In November, Garland appointed Jack Smith to investigate Trump’s alleged mishandling of classified information, along with allegations of unlawful interference with the 2020 transfer of power. Garland made the right call to appoint special counsels to investigate both presidents.

What else should we be thinking about this mess? I have a few thoughts.

First, resist the urge to compare everything to Trump. He is not the moral or legal benchmark. Here’s another way of putting it — even if the early indications are that there are substantial differences between Biden’s conduct and Trump’s – for example, Biden seems to have been far more cooperative than Trump – that does not render the Biden incident acceptable or excusable.

Handling classified information properly is not difficult. Indeed, handling classified information properly is a minimal requirement of access to our nation’s secrets. I once possessed a security clearance. I once had access to thousands upon thousands of pages of classified information. The system was set up to make it easy to handle those documents the right way.

Classified and unclassified documents were transmitted through entirely separate computer systems. Separate rooms were set up for storing and viewing classified documents. Even if there were occasions when classified information had to be moved from secure facilities, as often happened downrange in Iraq, the markings were clear, and accountability was strict.

We simply cannot consent to a culture of impunity regarding the mishandling of classified information at the highest levels of American government. If anything, accountability matters more the greater the power of the individual and the greater their level of access to secrets. After all, these are the people who have access to the most dangerous and damaging information. They should uphold the highest standards.

Second, apply the same legal standards to Trump and Biden as were applied to Clinton. When James Comey recommended against prosecuting Hillary Clinton, he announced a standard that had been applied to previous decisions to prosecute:

In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: Clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do NOT see those things here. 

This precise standard is not found in the relevant statutes. For example, 18 U.S. Code Section 793 — which criminalizes mishandling of information “relating to the national defense” — imposes criminal liability for mere “gross negligence” and does not require a finding of “willful mishandling”.

But if that standard applied to Clinton and other potential defendants, it should also apply to Trump and to Biden. To be clear, that does not mean that the DOJ should refuse to prosecute either man. If the DOJ finds evidence of willfulness or obstruction — from any person — then it should file charges, no matter the identity of the defendant.

Third, be patient. Don’t respond to the news like a partisan. As I’ve discussed before, partisans often behave like unpaid lawyers for their political team. If you feel an affinity for one party over the other — or one politician over another — any negative news triggers a powerful protective instinct. You instantly want to minimize or explain away negative facts. You’ll want to respond with whataboutism and contrasts: “Trump was worse!” or “At least Biden is cooperating!”

Leave the partisanship to the paid professionals — the lawyers and politicos who make their living defending their team. Instead, we need more citizen-jurors, the people who at least try to separate their emotions from their analysis and do radical things like waiting for all the facts to emerge before forming a definitive conclusion.

So let’s wait. If past incidents provide any clue to future events, we’ll likely see a flurry of early news activity followed by a long wait for the final results of the investigation. That early news activity can tell us important things. For example, almost immediately it became quite clear that the DOJ had adequate legal grounds to search Mar-a-Lago. But we still don’t have the complete picture of Trump’s conduct, and we may not have a more complete picture for many months.

I do, however, have one strong desire — to change the culture of accountability so that we’re not consistently expecting less of the most powerful politicians than we expect of the ordinary service members, law-enforcement officers, and diplomats who serve this country sacrificially and often anonymously.

Time and again, we have seen politicians escape legal responsibility for actions that would have cost ordinary Americans their careers (in the best case) and their liberty (in the likely case) if they’d treated classified information with similar carelessness. So let’s pause, wait for the facts to come out, and stop granting politicians a legal deference they don’t deserve.

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Comments

  • Chris  On 01/14/2023 at 10:00 am

    After the shocking discovery of highly classified documents at Mar-a-Lago and Biden’s subsequent public criticism of Trump, this revelation is even more shocking.

    Biden and Trump should be held to the same standards as regular American citizens if it is true that everyone is equal under the law.

    America’s ship has been sailing in troubled waters for some time now and the possibility of a major shipwreck is real.

    To say that it is a failed state would be the understatement of the century.

  • Clyde Duncan  On 01/14/2023 at 12:19 pm

    As long as they recover the Classified Documents and secure them where they belong, in the first place – The political nonsense should subside.

    In my opinion, it would no longer be necessary to play the broken record re: prosecuting either party – it would be moot.

    They got other fish to fry, as we say.

    • Chris  On 01/14/2023 at 1:43 pm

      Clyde: “ As long as they recover the Classified Documents and secure them where they belong, in the first place – The political nonsense should subside.”

      Easier said than done, Clyde.

      The top-level members of Executive Branch has unhindered access to classified documents all the time. How do you supervise the supervisors?

      This is a whole new kettle of fish, a real conundrum. Perhaps smarter people will now come up with foolproof ways of solving this embarrassing mess and safeguard against future recurrence.

  • Peggy  On 01/14/2023 at 12:26 pm

    As the Democrats were saying with the Trump’s incident, no-one is above the law. Now there is saying it is inadvertent. The double standards are appalling. I agree these two crooks should be given the same treatment. Yes there are differences between the two incidents – one was a VP when he had the docs and the other was a former President with powers to declassify. It is strange that Biden did not ask “two men and a truck” to move the docs from the Penn Centre which has been receiving bountiful donations from the Chinese Government, rather he sent his lawyers – why? Is he trying to cleanse knowing that there is a Republican house. Biden lies through his teeth; Trump is a thug, and ordinary citizens swallow the goop the media sells us.

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