The Trump-Biden-Pence Documents Story Is Not (Yet) about Overclassification

It is my belief that had Eric Holder appointed a Special Counsel to investigate David Petraeus’ hoarding of classified information, the retired General might have been charged with 18 USC 793(e) and maybe even 793(d).

That’s true, first of all, because the facts he admitted to as part of his wrist-slap plea largely cover the elements of the offense. That’s true, too, because everyone but Holder seemed to support charging Obama’s CIA Director. Ultimately, the decision would have remained Holder’s. Holder might have overruled a Special Counsel even still, as he is reported to have overruled prosecutors. Holder may have calculated that Petraeus’ years-long cultivation of Congress would mitigate any blowback for overriding the recommendation to prosecute.

Certainly Holder paid no price for making the decision he did make: Congress believed that Petraeus could do no wrong.

Instead, Petraeus is (with Sandy Berger) one of the two poster children for the premise that the powerful will never be held accountable for mishandling classified information the way lower ranking personnel will be. That could change with at least two Special Counsels involved.

Yet even as powerful as he was during the period he was leaking to his biographer, David Petraeus is still differently situated than Trump, Biden, and Pence, starting with the fact that even in his case, DOJ relied on his clearance and nondisclosure agreements to prosecute him.

By comparison, all three of the men currently under investigation were Original Classification Authorities under EO 13526, the Executive Order governing classification during the period in question. None of those men would ever have been required to get any security clearance beyond the courtesy clearance given to formers after their tenure (of which Trump was stripped). And so all of these men went from a status of near immunity while in office, instantly — at 12:00PM on January 20 — to having to sort through files in boxes to decide what he was permitted to take home and what he was obligated to turn over to the Archives.

That process was at least part of what went wrong in all three cases, even Biden’s possession of documents from when he was a powerful Senate Chair. One minute, they were virtually immune from rules pertaining to classification, and literally the next minute — before they had finished that sorting process! — they were subject to the rule of law again.

Indeed, because all three are explicitly subject to the Presidential Records Act, the basis by which they lack authorization to possess the documents in question stems, in significant part, from an entirely different basis than it does for other people, which arises from the clearances they were never required to get.

And that’s one reason why all the punditry (here, here, here, here) — almost all from people who haven’t followed the details even of the Trump case, where we’ve got the most facts available — claiming that this is a problem with overclassification is, at best, wildly premature.

Indeed, with Trump, we can say with some certainty that this is not about overclassification. The classification markings from the subpoena DOJ served on him, understood to be based in part on what they had already found in the boxes he turned over, are not trivial. Nor are the likely contents of the documents we see in the FBI picture of his stolen documents. Even some of the documents from the Russian investigation that Trump wanted to declassify and disseminate rely on either human source and/or intelligence collection targeting Russia’s spy service, and the reporting was just five years old at the time (a brand new must read from the NYT also reveals the intelligence came from the Dutch, so it wasn’t our intelligence to declassify).

These men were the President and Vice President. They had access to highly sensitive information, and Trump, at least, had a well-established history of releasing it with abandon.

Until we have evidence that the documents in question were simply materials that some agency was bigfooting (as was the case in most of the classification pertaining to Hillary’s emails), we should not assume this is about overclassification. There’s no evidence of that.

Chuck Rosenberg argues that it also should not matter.

One place we might see overclassification is in classification reviews of the hand-written notes that both Trump and Biden took, though even there, Trump was reportedly waving around his private love letters with a nuclear-armed dictator as a party trick, and that probably did have the ability to make it harder to manage a very difficult threat. But with Trump, at least, the possibility that some of his hand-written notes won’t turn out to be as sensitive as the spooks will declare them doesn’t mitigate that he had documents that are almost certainly unbelievably sensitive sitting in a beach resort known to be targeted by intelligence services.

Thus far, we have no evidence that this is about overclassification. We do have abundant evidence that these three specific compromises have to do with the wacky way Presidents and Vice Presidents (and to a lesser degree, Members of Congress) operate outside the system of clearances that leads virtually everyone else with access to classified information to exercise a great deal of caution when handling it. One day they’re immune, the next day they’re sorting documents to try to sort out what needs to go to the Archives.

That’s a different problem than overclassification.

Crazier still, most of the people who are out there claiming this about overclassification are using (at least partly) as their examples people who sought out documents that were not part of their work and then leaked those documents. Those cases are also not about overclassification.

And amid all the talk of overclassification, none of the pundits have mentioned a case that is a far more apt example of overclassification and the way the Executive uses classification to punish people: Jeremy Brown, the Oath Keeper recently found guilty of unlawfully retaining — right next to some grenades for which he was also convicted — one document that Brown wrote himself in 2011, classified Secret, believed to be about the Bowe Bergdahl case.

Brown was acquitted on 793 charges for four other documents, also classified Secret, that were even older.

Brown’s case in many ways parallels Trump’s. Like Trump, the Feds showed up and asked him to return the document and he lied to hide it. Like Trump, the FBI found the documents with a warrant.

But it’s far more likely these documents, all of which were at least ten years old, are overclassified.

Don’t get me wrong: I think Brown is a dangerous shithole. I’m not unhappy he’s going to prison.

I also think DOJ believed, correctly, they could use these classified documents (along with the grenades) as a way to neutralize a dangerous loose canon.

Want to make a case about overclassification? Jeremy Brown is the dangerous shithole you should be defending. Want to prevent the grave disparities in how powerful people are treated, as compared to dangerous shitholes like Jeremy Brown?

You need to address that magic process by which Presidents are treated with immunity and then — in an instant!! — purportedly subjected to the same rules as everyone else.

40 replies
  1. Silly but True says:

    Petreus had interesting dynamics within the left that Obama had to navigate; and in nearly (every?) case, Obama sided with the hawks. On CIA waterboarding, and Obama’s CIA’s fraudulent allegations that Feinstein’s office and aids engaged in espionage in legitimately accessing waterboarding files on Feinstein’s report server coordinated with CIA. In Petreus, Obama had someone absolutely hated by the far left and who wanted to see him burn. But Obama shared much of his practical worldview with Clinton, and expected Clinton to serve after he left, and a Petreus likely would have also served in a Clinton administration because he was viewed as best of bad options to oversee the best of a bad war, so there was reputation salvaging to a degree in wrist-slapping Petreus.

    With regard to classified records, the situation and its peril is obvious: “And so all of these men went from a status of near immunity while in office, instantly — at 12:00PM on January 20 — to having to sort through files…”

    One would expect then that those seeking to take personal copies should at least reasonably declassify any taken records in advance of that hard deadline.

    • Shadowalker says:

      Declassifying something on the sole basis to reduce your criminal liability later doesn’t change the original reason for the classification and is likely to fail in court should you be prosecuted.

      They classify things they deem would cause harm to the nation as means of control, not just to make something illegal to own.

      • Silly but True says:

        That’s silly. The ostensible reason on record was distribution to the “American People,” one of the same interests of the US government.

        While courts may stick their neck out on a crime-fraud basis, they have essentially zero ability to second guess a POTUS’ decisions on the matter.

        • Shadowalker says:

          It wouldn’t work regardless. The 11th appellate (SCOTUS declined to intervene) already ruled that declassification is irrelevant or a “red herring” and that the documents status as property of the US government would not change.

          “ In any event, at least for these purposes, the declassification argument is a red herring because declassifying an official document would not change its content or render it personal.”

        • Silly but True says:

          You’re conflating separate features of the records interests at stake.

          This topic is not on the front page because of a mundane disagreement over who owns a paper copy of something where classification isn’t a factor.

          And if the problem devolves to that point, it’s a particularly insignificant issue that DoJ would be silly to pursue in any case.

  2. Fraud Guy says:

    “The only thing known to go faster than ordinary light is monarchy, according to the philosopher Ly Tin Wheedle. He reasoned like this: you can’t have more than one king, and tradition demands that there is no gap between kings, so when a king dies the succession must therefore pass to the heir instantaneously. Presumably, he said, there must be some elementary particles — kingons, or possibly queons — that do this job, but of course succession sometimes fails if, in mid-flight, they strike an anti-particle, or republicon. His ambitious plans to use his discovery to send messages, involving the careful torturing of a small king in order to modulate the signal, were never fully expanded because, at that point, the bar closed.”
    ― Terry Pratchett

    Now we have to consider adding presidentons to this list, otherwise this dangerous loose canon will be picked up by some Jesuitical scholar and used.

  3. darms says:

    Okay, the NYT article floored me, Barr leading and Durham willfully following an alternate reality in a way that has specific legal consequences in the real world the rest of us inhabit. It’s one thing for some loony at his seaside mansion to rave on and on about his stolen election and such, quite another when there are actual US attorneys involved. Yikes. As to the documents themselves and overclassification, no opinion here until i’ve fully digested that article…

  4. Pedro Perfecto says:

    The NYT story is just a story told by 12 anonymous sources and three bias “journalists”. Is it true- who the hell knows.

    It’s basically an opinion piece and most likely just trying to get ahead of Durham’s reporting.

    If Durham comes out within ten days, we’ll all see the reason for this “story”, controll the narrative. Sad!

    • bmaz says:

      No, “Pedro”, it is not merely an “opinion piece”. As is usually the case with you, you are full of it. And Charlie, Goldman and Benner, while not perfect, are certainly quality reporters, not biased people “controlling the narrative”.

      • BobBobCon says:

        I agree in particular that Savage isn’t perfect but he’s done some very good work. He digs and he analyzes in ways that almost everyone else in the Politics beat at the Times has an almost allergic reaction to.

      • Rayne says:

        Why was Pedro allowed out of the penalty box? Pedro does this kind of crap all the time, far too often for this site. 0_o

    • earlofhuntingdon says:

      LOL. Keep waiting at that bus stop for Godot and Durham’s report. If he ever files it, it’s overdue, it will be as legitimate as the rest of his purported investigation.

    • Joe Public says:

      ‘Just 12 sources’ LOL! An article with 2 sources is remarkably well sourced.

      (Name changed to fit the new rules).

  5. Silly but True says:

    Lol! Today, all POTUSes but Carter rattled.

    Clinton, GW, and Obama all real quick to say “We don’t have any classified documents.” And love that instead of simply stating that too, the Carter Center essentially said “Meh to your silly law. Come at us, bro.”

    • Shadowalker says:

      Carter was excluded because he doesn’t fall under the PRA. Reagan was the first president to be governed by the act at the end of his second term.

      • Silly but True says:


        And here is the fundamental truth of the last 42 years: it has not been nor is it actually any problem that literally millions of classified records of former Presidents predating 1981, except for a small subset of Nixon papers covered by their own uniquely tailored federal law, exist beyond the government’s direct ownership.

        This has served as a particularly effective solution not in need of any problem to be manufactured to then try to be solved by well-meaning smiley glad-hands.

        Especially Carter. If there is at least one thing that everyone can agree about Carter is that he arguably remains the pinnacle of ethical stewardship of his affairs.

        It’s not that the only issue is the law not applying, although that is mostly significant. It’s also that it would be silly to apply Trump, or Biden, or Pence, or anyone else’s experience to the standard Carter practiced. And if someone at some point manages to produce a classified record from 1977 that remained in Carter’s papers? So what?

  6. Jenny says:

    Pasta and chianti for Barr and Durham with tiramisu for dessert while on official government business in Italy?
    Italian officials “unexpectedly offered a potentially explosive tip linking Mr. Trump to certain suspected financial crimes.” No charges. “The specifics of the tip and how they handled the investigation remain unclear, but Mr. Durham brought no charges over it.” Investigate that.

  7. Scott Rose says:

    Before we get to the question of over-classification, I’m not sure we should consider Trump’s, Biden’s, and Pence’s separate behavior with classified documents as a single “documents story.”

    There is so far no public evidence that Biden or Pence retained documents as part of a scheme to extort the government for additional documents.

    The allegation that Trump did so, while not yet proven beyond a reasonable doubt, if true would match patterns of behavior he has exhibited elsewhere.

    And, if Trump really did propose a swap of documents, possible over-classification would be irrelevant to that. It wouldn’t be part of a story that also involves Biden’s and Pence’s handling of classified documents.

  8. gmoke says:

    Don’t forget John Deutch:

    Deutch left the CIA on December 15, 1996, and soon after it was revealed that several of his laptop computers contained classified information wrongfully labeled as unclassified. In January 1997, the CIA began a formal security investigation of the matter. Senior management at CIA declined to pursue fully the security breach. Over two years after his departure, the matter was referred to the Department of Justice, where Attorney General Janet Reno declined prosecution. She did, however, recommend an investigation to determine whether Deutch should retain his security clearance. Deutch had agreed to plead guilty to a misdemeanor for mishandling government secrets on January 19, 2001, but President Clinton pardoned him in his last day in office, two days before the Justice Department could file the case against him.

    • Silly but True says:

      Or that of 13-year-old Kristin Preble, who brought classified documents to her class for show-and-tell?

      Nothing happened to her. Or her class who saw it. Or the teacher who called FBI. Or her parents. Or even the source of how it came about a kid brings classified records to school for show-and-tell — Jody Powell, Jimmy Carter’s press Secretary who accidently left the documents in a hotel room to be found by Preble’s father who held it as a keepsake.

  9. DrStuartC says:

    It is certainly so nice to come here and read about these salient, crucial aspects of these political/legal issues! Thank you again, Marcy, for your work. And saying that, I’m going to go donate after I write this, so you can continue your amazing efforts to cut through the smoke and mirrors and confusion. Thank you too, Rayne and Bmaz, for all your hard work, and to all you amazing commenters, (harpie stands out even in this crowd), thank you for helping me understand everything everywhere all at once, so to speak.

    It’s now painfully obvious that there’s a process problem for Presidents, VPs and whomever else in congress gets special consideration for handling top secret information. They are human beings, and can make mistakes when, in a hurry, and secret documents have to be found around the office, removed and returned to their proper owners, so they don’t get packed up into the boxes going home. Oh and POTUSs and VPs and their staff are rather preoccupied with other things at transition time.

    So what would be hard about assigning a collection team from the intelligence services and NARA to come in and help them go through all the boxes being packed, and have the IS team certify everything is returned? And isn’t it possible to maintain some sort of library/database/archive that logs every top secret document so there’s an inventory of what’s been borrowed?

    And another question: Isn’t it kind of understandable how handling secret information got like this because we always used to, you know, trust our President not to betray top secrets to anyone? Isn’t all the concern about secret document handling and return only necessary now, because we have an ex-president with Putin’s head so far up his ass, he can taste the Russian Brylcreem?

    (Mods-Not sure if I used the same new name – I’ve only used it once since the change.)

    • Thomas Paine says:

      In my experience working in industry on classified areas, NO personal papers or other material could be carted home upon retirement unless and until Industrial Security officers did a 100% inspection of each and every “Banker’s Box” the Retiree wanted to retain. As a result a lot of stuff went to the shredder. Why the NARA and the WH could not do the same is beyond me. I chalk it up to privilege and arrogance. Presidents are servants not sovereigns. When their term is up they should leave with only the stuff they brought with them. If the succeeding administration wants their counsel, then they should clear them and ask them to provide their services within secure government facilities.

      • GWPDA says:

        Why? Because within the last 6 years or so, the entity required to make the inspection, which is a perfectly conventional inspection, was neutered by Trump. That would be the Staff Secretary, Derek Lyons, first, and secondly the White House Office of Management & Records. Check with Johnny McIntee.

  10. GWPDA says:

    Hell, ’emptywheel’, I’m an original classifier. I operated under the terms of every security requirement. Far as I know, nobody’s coming after me.

    In terms of overclassification, I repeat (sometimes endlessly publicly, frequently within boundaries) the 1917 German Order of Battle is STILL DAMN WELL CLASSIFIED AND UNAVAILABLE. IT’S BECAUSE THE BOTTOM LINE IS THAT ONLY THE ENTITY WHICH CLASSIFIED SOMETHING IS ABLE TO DECLASSIFY IT. And the Department of War doesn’t exist any more.

    Live with it.

  11. harpie says:

    Bradley Moss in the NYT:
    Burn Bags and Tracking Numbers: How the White House Handles Classified Files

    [Via Marcy re: above article]:
    10:21 PM · Jan 30, 2023

    This is a helpful article, but it still misses a critical point:

    As a best practice, most classified environments should be segregated from unclassified environments. The West Wing is not — it’s completely intermingled, which makes situations like this much more likely. /1 [THREAD]

    • harpie says:

      ^^^ This seems to me like great advice that would be straight forward to implement,
      and is all well and good,

      BUT the only way ANYthing works in a Democratic Republic is if EVERYone acknowledges and abides by the rules to the best of their ability.

      The TRUMP White House was NOT an example of that.
      The TRUMP White House was the OPPOSITE of that.

      • Rayne says:

        There’s nothing in the bins backstage, harpie, sorry. Was it freed since you published this comment 40 minutes ago, perhaps?

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