Editor’s Note: Bradley P. Moss is a partner and national security attorney at the Washington, DC, Law Office of Mark S. Zaid, P.C. Follow him on Twitter at @BradMossEsq. The views expressed here are his own. Read more opinion at CNN.
In the last two years, two men who previously served as constitutional officers of the executive branch have been informed that records marked classified from their time in office have been located in their private residences or offices. Those two men, of course, are former President Donald Trump, and current President (and former Vice President) Joe Biden.
To paraphrase Robert Frost, the roads these two men were on diverged in a wood, and Biden took the one the law requires you to travel on.
Unlike Trump, who spent nearly 18 months delaying, obfuscating and arguably obstructing efforts by the federal government to recover from Mar-a-Lago all of the documents with classification markings, Biden’s team appears to have played by the book.
According to media reports, in November 2022, Biden’s personal lawyers were clearing out remaining items at his private office at his pre-presidency think tank when they located approximately 10 documents containing classification markings. The lawyers appear to have notified White House counsel, who then notified the National Archives and Records Administration (NARA). The documents were properly secured by the federal government the next morning. Additional reporting indicates that a second separate batch of records with classification markings were found in supplemental searches by Biden aides.
To be unequivocally clear, those documents never should have been in unauthorized locations. Period. It is a serious breach of security protocol and a threat to national security any time any properly classified document is removed from authorized locations.
People can and have lost their security clearances and careers for breaches of these procedures. An investigation into how those documents came to be located at these private locations is currently being overseen by the US attorney’s office for the Northern District of Illinois, and I trust that office will have the full cooperation of the rest of the executive branch (including the White House) as required by law.
Of course, the Trump case remains under investigation by a grand jury and both he and his attorneys have denied any wrongdoing (and indeed, at times have questioned whether the records were even still classified at all). But given the political sensitivity surrounding the matter, the obvious first question is whether Biden faces similar potential criminal liability. Based on current reporting – any final conclusions will depend on all of the information and not just details leaked to the media – the answer appears to be no.
Biden’s team did not obstruct efforts to recover the documents. They promptly notified the relevant government authorities, who themselves then took prompt action to recover the documents.
There is no indication of efforts by Biden’s team to provide false information to federal investigators regarding the existence of other documents in their possession, as is alleged against one of Trump’s lawyers.
There is no evidence of concerns by investigators that Biden’s team was engaged in efforts to relocate and conceal other documents, as is alleged against Trump’s team.
Biden is not publicly attacking the investigation as a political witch hunt (notwithstanding it being overseen by a US attorney appointed by Trump), unlike the constant accusations made by Trump regarding the special counsel’s probe into his conduct.
This is the difference between a grown, mature adult handling a breach of security compared to an overgrown adolescent prone to tantrums.
That we are even talking about this issue, though, speaks to a second and separate matter, namely that of overclassification. This does not mean the documents held by Trump or Biden were improperly classified; I am not privy to that information. But mishandling of classified documents does happen.
There are millions of clearance holders in the federal bureaucracy, and the default desire to overclassify documents out of excessive abundances of caution means that there is simply too much classified paperwork floating around to properly manage.
Time and again, subject matter experts have warned about the issue of overclassification. The 9/11 Commission criticized it. The former solicitor general who argued the Pentagon Papers case on behalf of the US government later criticized it. Former leaders at NARA have raised it in testimony before Congress. The last congressional reform on the matter was more than 10 years ago.
It is easy to suggest Trump’s chaotic West Wing was an anomaly in security handling and that his behavior is not reflective of a larger problem. The Obama White House, however, was notoriously buttoned-up in its adherence to security protocols in its offices, and there is no indication that Biden’s staffers in the vice president’s office were any different.
That even they made errors in retention and storage speaks to an issue of just how unwieldly the classified mountain has become.
There will be hearings into all of this, particularly with the new Republican House. There will be political gamesmanship, no doubt. But if anything is to be resolved, it should be to determine if there is a need for a renewed effort to incentivize reforms to this process.