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Editor’s note: Bradley P. Moss is a Partner and National Security Attorney at Marc S. Zeid LLP, Washington, DC. @Brad MossEsqThe views expressed here are his own. Read more opinions on CNN.
CNN
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In the past two years, two men, former constitutional magistrates in the executive branch, were informed that classified records were kept in their private residences or offices during their tenure. Those two men, of course, are former President Donald Trump and current President (and former Vice President) Joe Biden.
To paraphrase Robert Frost, the two men’s trails diverged in the woods, and Biden chose the one that the law required him to follow.
Unlike Trump, who delayed, obfuscated, and arguably thwarted the federal government’s recovery of all classified-marked documents from Mar-a-Lago for nearly 18 months, Biden’s team appears to have acted by the book.
According to media reports, in November 2022, Biden’s personal attorneys found about 10 documents containing classification markers while clearing the private offices of the pre-presidential think tank. The attorney apparently notified the White House attorney, who then notified the National Archives and Records Administration (NARA). The document was properly secured by the federal government the next morning. Additional reports indicate that a supplementary search by Biden aides found a second batch of separate records with classification marks.
To be clear, these documents should not have been placed in unauthorized locations. period. Any removal of properly classified documents from an authorized location is a serious violation of security protocols and a threat to national security.
People can and do lose their security clearances and careers for violating these procedures. Investigations into how these documents came to be placed in these private locations are now being overseen by the U.S. Attorney’s Office for the Northern District of Illinois, and I believe that office is conducting. We believe we will get the full cooperation of the rest of the government (including the White House) where required by law.
Of course, the Trump case is under investigation by a grand jury, and both he and his lawyers have denied wrongdoing (indeed, they sometimes question whether the records were still classified). But given the political sensitivity surrounding the issue, the obvious first question is whether Biden faces similar potential criminal charges. Based on current reports, the final conclusion will depend on all information, not just the details leaked to the media. The answer seems to be no.
Biden’s team did not hamper efforts to retrieve the documents. They immediately notified the relevant government authorities, who themselves took swift action to retrieve the documents.
There is no indication that Biden’s team is willing to provide false information regarding the existence of other documents owned by federal agents, as has been alleged against one of Trump’s attorneys.
There is no evidence of concern by investigators that Biden’s team was involved in the transfer or concealment of other documents, as alleged against Trump’s team.
Biden has called the investigation (albeit overseen by Trump-appointed US attorneys) a political witch hunt, unlike Trump’s constant accusations of the special counsel’s investigation into his actions. I have not publicly attacked you.
This is the difference between a grown, mature adult dealing with security breaches and a tantrum-prone overgrown adolescent.
But when we talk about this problem, we are talking about a second, separate problem, that of overclassification. This does not mean that documents held by Trump or Biden were improperly classified. I’m not familiar with that information. However, mishandling of confidential documents does happen.
With millions of clearance holders in the federal bureaucracy, the default desire to overclassify documents out of undue caution means there are too many sensitive documents floating around to manage properly. To do.
Subject matter experts have warned many times about the problem of overclassification. The 9/11 Commission criticized it. The former Attorney General who argued the Pentagon Papers case on behalf of the U.S. government later criticized it.Former NARA leaders brought it up in testimony before Congress, the last congressional on the issue. Reformation took place more than ten years before him.
It’s easy to suggest that Trump’s chaotic West Wing is an anomaly in security handling and that his actions don’t reflect a larger problem. , and there is no indication that Biden’s vice president’s office staff was any different.
Even their errors in retention and storage speak to the problem of how unruly the sorted pile has become.
There will be hearings on all of this, especially in the new Republican House of Representatives. There will definitely be political gamesmanship. But if there is anything to be done, it is to determine whether new efforts are needed to encourage reform of this process.
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