US President Joe Biden is facing uncertain consequences and an unprecedented situation after classified documents were discovered at a think tank office in Washington, DC and at Biden’s home in Wilmington, Delaware. OLIVIER DOULIERY/AFP/Getty Images
Michael Hayden spent four decades as an intelligence officer, a US Air Force general who began his career in 1969 and rose to lead both the National Security Agency and the Central Intelligence Agency. But he has never seen anything like the carelessness and, perhaps, obstructionism that has come to light in recent months with classified documents found in the homes of Donald Trump and Joe Biden.
“I don’t know of any other presidents who have been found with similar lapses,” Mr. Hayden said in an interview.
“Just the two.”
Even Richard Nixon, who fought to retain possession of his documents and records—hoping to destroy them—after his resignation in 1974 was not accused of hiding classified material.
It was the controversy surrounding Mr. Nixon’s papers that led to the Presidential Records Act of 1978, which established public ownership of presidential papers — a key legal principle as the U.S. Justice Department scrutinizes how Mr. Trump, and now Mr. -n Biden, went so far as to have highly sensitive classified documents in their homes.
What is not clear is what consequences, if any, there will be for the two presidents.
On Friday, Republicans in the US House of Representatives launched their own investigation into Mr. Biden’s documents, which were found in two different locations. A letter from top Republicans on the House Judiciary Committee requests access to information and correspondence related to the case and the appointment of Robert Hurr as a special counsel by Attorney General Merrick Garland.
They also asked about the release of information about the documents found on Mr. Biden and whether the White House “actively withheld this information from the public in the run-up to the 2022 election.”
The release of the documents points to chaotic times at the top, a hallmark of Mr Trump’s presidency. But Mr. Biden also left the vice president’s office in 2017 in a state of disarray, former aides told CNN this week, as he tried to maintain a fast pace of work until his final days.
Both presidents are now under investigation by special prosecutors.
The recovery of the documents raises questions not only about what happened and why – but also about what can be done about it.
“We’re kind of in uncharted waters here,” said Mark Lowenthal, former Select Committee on Intelligence staff director and onetime deputy chairman for assessment at the National Intelligence Council.
“You’re dealing with a situation where the normal rules of what’s going on literally don’t apply,” he said. “Not just the fact that there’s no precedent — but there’s no way to do anything about it that makes any sense.”
Mr. Biden is the sitting president. His access to state secrets comes from voters: presidents get the highest levels of security access when they win elections. In fact, presidents do not receive a formal security clearance, which is granted to other government officials after the swearing-in process. Likewise, presidential access is not revoked upon leaving office, as there is no official authorization to revoke.
US legal convention suggests that Mr Biden has little to fear from further repercussions, at least for now.
“Although the US has never had the opportunity to test the idea of prosecuting a sitting president, the general understanding is that such a prosecution can only happen after the person leaves office, whether through impeachment, resignation or election,” Mark said Zeid, a Washington, D.C.-based attorney who specializes in security clearance law and whistleblowing.
Mr Trump’s status as a former president similarly means there are complications to the fallout he could face. But prosecutors may look into Mr. Trump’s role in the discovery — and alleged concealment — of classified material that was eventually seized in an FBI raid at his Mar-a-Lago home.
“The real sin is obstruction,” said Mr. Hayden. “Trump wanted these documents,” he added. “Biden didn’t want those documents.”
More than a million people have classified clearances in the US and sophisticated document tracking systems are in place. Mr. Lowenthal, who is now president of the Intelligence and Security Academy in Arlington, Va., likened it to a library that records which books have been borrowed and notes when they have been returned.
“There is a process for doing this. It really shouldn’t be that hard,” he said.
Such processes can be strained by the country’s top leadership. If an intelligence official brings a document to the president or vice president, they can ask to withhold it. “You can say no. But you can’t take it off their desk,” Mr. Lowenthal said.
However, he is also puzzled by the documents found on Mr Biden and rejected the president’s defense that some were kept locked to his Corvette – hardly a safe place for sensitive documents.
“Someone should have noticed that these things were labeled ‘Secret’ or ‘Top Secret’ or ‘Confidential’ — why didn’t someone notice that and say ‘these don’t go to the Delaware garage?'”
But, Mr. Hayden said, the leaked presidential documents also point to a larger problem of overclassification, a tendency among government agencies to stamp material as classified for no real reason. Mr. Hayden estimates that about 70 percent of classified information does not deserve the label.
“We do a lot of things that are ‘secret’ and really aren’t secret,” he added.
The red tape built up in classified documents makes such materials more common and complicates the process of tracking them down. Mr. Hayden hopes that as the furor over the ongoing investigations begins to cool, the events of recent months will spark a serious conversation about the US government’s approach to secrets.
“You can’t do it now,” he said. “But later, come on. Let’s do something about it.”
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