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All the Presidents' Classified Docs
And the pitfalls of running an investigation into a leaked Supreme Court draft decision
What the hell
Look, mishandling of classified information is serious business. I spent the better part of my career investigating it. Mishandling classified information - as opposed to, say, espionage, in which a person deliberately provides national defense information to a foreign power - is frequently unintentional. But even inadvertent mishandling has the potential to put sources, methods, and technologies at risk (things like human sources operating in hostile countries, sensitive collection sensors on a satellite, or a cutting-edge military technology).
The thing is, unfortunately, mishandling of classified information goes on all the time. All the time. On a daily basis somewhere in the federal government, someone accidentally inserts classified information into an unclassified email, or takes home a stack of paper which has some classified in the middle of the pile, or misplaces a briefcase with classified information in it on the metro or at a conference. You get the idea. When I was the head of the FBI’s Counterespionage Section, on a monthly basis, if not more, we’d get calls from various agencies telling us they’d come across a scenario like I just described, asking us if we would open a case. The subsequent discussion inevitably centered around one critical question: what did they know about the intent of the person who had mishandled the classified information?
Did the person intentionally and willfully mishandle it, e.g., had they repeatedly had mishandling violations, were they warned, counseled, and/or punished for them and nevertheless continued to do so?
Was there a massive amount of it (I’m not talking about tens of documents - I mean tens of thousands or more, Chelsea Manning or allegedly Edward Snowden amounts of material)?
Did it involve a party, like a foreign power or the media, that would indicate some sort of disloyalty to the US? (I’m not going to dive into a discussion about whether or not leaking classified information to the media can ever be proper. My view? There are appropriate avenues for whistleblowing. If you nevertheless feel a need to leak, great, but be prepared to pay for that self-decided altruism with jail time if a jury of your peers decides it’s merited.)
Did the person try to impede the investigation - did they lie, destroy evidence, etc?
In his July 5th, 2016 speech announcing the results of the FBI’s investigation into former Secretary of State Clinton’s use of a private email server, Director Comey did an excellent job of succinctly laying out when prosecution would be merited (based on a review of every time the Department of Justice had charged someone with mishandling classified information): “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.” I know the decision to make speech remains contentious - but if you can set the conduct aside, the actual content of how the FBI and DOJ think about mishandling cases is and remains accurate and helpful.
“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.”
One more point before diving into Trump’s and Biden’s behavior. I spent a fair amount of my professional life in wealth and power-adjacent settings, usually in a governmental context. One thing that may not be apparent is the administrative complexity of the life of a cabinet-level employee (or Senator or Vice President or President). Time and attention are at a premium. Very senior employees have staff which prepare and present material in advance of meetings and who remove it when the meetings are complete. They have security details, drivers, their own aircraft. They have advisors, attorneys, public affairs specialists, cooks, people who run errands, plan their schedules, ensure bananas are cut in the precise way they prefer, mow their lawns, pack things, and unpack things. What most of us experience as the administrative burden of moving through life is not done alone but rather by a team - sometime a team of hundreds.
I say all of that to buttress this assertion: when a such a senior level person says they weren’t aware documents bearing classified markings were found in a box somewhere, that may well be a reasonable, truthful statement. That’s why investigators will look for other evidence indicating personal knowledge of such material - when it was located, was it mixed in with material the person was currently handling (e.g., on top of a desk next to yesterday’s newspaper)? Was it in a diary of notes written by the person in question? Ultimately, it’s why I think when it comes to the decision of whether to charge Trump, the material recovered from his office and safe, not the material returned to the Archives or in the Mar-a-Lago basement, will be the most relevant. It’s the material he self-selected to keep with him on a continuing day-to-day basis, even after repeated warnings he needed to return it.
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“Comparison is the thief of joy”
What does all this mean in the context of what we know about Biden and Trump? As of this Sunday morning, here’s the rough timeline of Biden’s documents bearing classification markings (I use this somewhat cumbersome phrasing for two reasons - first, it’s the phrase DOJ is using; second, it’s more accurate, in that a classification review may determine that the documents are improperly or no longer classified):
November 2, 2022: Biden’s attorneys discover approximately 10 documents with classification markings in a locked closet in the Penn Biden Center office in Washington, DC. The documents are immediately turned over to the National Archives and Records Administration (NARA), who quickly inform DOJ two days later. On November 9th, the FBI begins an investigation, and on November 14th, AG Merrick Garland assigns John Lausch, the outgoing US Attorney for the Northern District of Illinois, to determine if appointing a Special Counsel is merited.
December 20, 2022: Biden’s personal counsel finds additional documents marked classified in a second location, Biden’s home in Wilmington, Delaware. Biden’s attorneys inform Lausch and turn over the documents the following day.
January 11, 2023: Biden’s personal counsel finds at least one more classified document in the Wilmington residence. Biden’s team informs DOJ and turns over the document the following day, at which time five more documents marked classified at the Wilmington residence are found.
January 20, 2023: The FBI conducts a consent search of Biden’s Wilmington residence, recovering six documents marked classified along with surrounding material, as well as some of Biden’s handwritten notes. According to Biden’s personal attorney Bob Bauer, some of the documents date to Biden’s Senate service (1973-2009), and the handwritten notes from his time as Vice President (2009-2017).
Compare this to Trump:
January 17-18, 2022: After a series of requests to return original presidential records which began at least as early as January 2021, NARA recovers 184 documents containing over 700 pages bearing classification markings. A month later, on February 18, NARA notifies DOJ of the material marked classified, and nearly two months later, on April 11th, the FBI asks NARA for access to the material.
June 3, 2022: Pursuant to a Federal Grand Jury subpoena, the FBI recovers 37 documents bearing classification markings. A certification drafted by Trump attorney Evan Corcoran and signed by Christina Bobb states (with the Bobb-added qualifier “[b]ased upon the information that has been provided to me”) that “any and all” documents with classified markings had now been returned.
August 8, 2022: The FBI executes search warrant at Mar-a-Lago and seizes 103 documents marked classified
Early December, 2022: A team hired by Trump discovers “at least two” documents bearing classified markings in a storage unit in West Palm Beach, Florida.
A few highlights relevant to the analysis of when DOJ has criminally charged mishandling of classified information in the past (there are a large number of significant differences in Trump’s behavior, highlighted nicely by Ryan Goodman and Clara Apt here at Just Security). Biden’s interaction with DOJ has been rapid and open - over the span of two and a half months, we have a fairly complete record of Biden’s team rapidly identifying and of their own initiative providing the material to DOJ, followed by subsequent cooperation up to and including granting consent to search his residence. Biden stated he had no knowledge of the material being present, and has made no claim that he or anyone else declassified it.
Pausing to go on a quick detour: YES, Vice Presidents have the authority to declassify information. In accordance with the current guidelines governing classified information, Executive Order 13526, Vice Presidents are specified original classification authorities and therefore have the ability to declassify information. There is some ambiguity as to whether the Vice President is “a supervisory official of either the originator or his or her successor in function” when it comes to the US Intelligence Community. Under a previous EO, then-Vice President Dick Cheney clearly was intended to exercise such authority.
Going back to Biden - although the public record is replete with evidence of his rapid, willing cooperation, there are things we still don’t know, especially the context in which the material marked classified was found. Was it in a box which hadn’t been touched in years? Or was it sitting on top of the desk Biden uses every weekend?
So let’s look at Trump’s behavior (again, I encourage you to really take a close LOOK at it, here). After a year of resisting NARA’s ongoing attempts to recover presidential records, Trump finally produced an incomplete set of records which happened to contain - not noted by Trump or any of his staff - what appears to be highly classified material. More than 700 pages worth. Then, following nearly five more months of dragged out negotiations, and pursuant to a compulsory Grand Jury subpoena, Trump produces 37 more multi-paged documents bearing classified markings while declaring at the same time that no more remain. Yet, two and a half months later - this time with a search warrant - the FBI recovers another 103 documents marked classified. Finally, four months after THAT, a private search finds a few more documents amidst “swords and wrestling belts” in a storage locker. And as all of this unfolded, Trump claimed the documents were his, at times advancing the notion - which none of his attorneys have been willing to state in a single court filing - that he could declassify documents just “by thinking about it.”
Finally, let’s apply what we know (a heavy asterisk that we don’t have all of the facts available to investigators and prosecutors) to the prosecute/don’t prosecute analysis described above:
Clearly intentional and willful mishandling? Biden proactively contacted NARA when the material was discovered and rapidly cooperated with DOJ’s subsequent investigation, including granting consent for a search of his residence. Biden stated he was unaware of the material. Trump was notified of missing material and his requirement to return it shortly after leaving the presidency, and fought for over a year and a half to not return the material which he likely knew he had - because some of the material marked classified was seized from his Mar-a-Lago office in locations indicating personal, specific selection of the material and current access.
Massive amount of information? Biden appears to have possessed less than a hundred pages of documents marked classified, Trump well over a thousand. But both are under the “vast quantities” DOJ has prosecuted in the past.
For a purpose of disloyalty to the US? For Biden, none. For what we publicly know, rather than speculate, about Trump? None.
Efforts to obstruct? Biden and his team have proactively and rapidly engaged with NARA, the FBI, and DOJ, notifying them of and turning over all material within days and offering consent to search. Trump’s attorneys have presented misleading certifications, Trump has made dubious claims of declassification, CCTV footage suggests suspicious movement of material into and out of storage at Mar-a-Lago surrounding the FBI’s presence, and more.
In light of that, based on what we know today, Trump’s behavior merits prosecution. Biden’s does not. It’s not even close. What Biden did shouldn’t impact the decision about whether or not to charge Trump any more than Trump’s actions should impact the decision about Biden. One caveat to that: how the comparison plays out in the media, Congress, and court of public opinion may well have an impact on a future juror’s opinion.
Political crisis management and communications
I’ll leave commentary on the political impact of the way Trump and Biden have handled their respective cases to the experts, but having watched a number of former National Security Advisors/four star generals/former Secretary of State/CIA director and other senior officials respond to mishandling of classified information, here are a few thoughts:
When it comes to what the FBI and DOJ are doing, don’t be a weasel and use the word “matter” or “inquiry” or “review” - people see through that. It’s an investigation. Period. Own it in a straightforward and simple way. For Biden, it might look like this: “We discovered documents bearing classification markings. I wasn’t aware they were there. We are fully cooperating with DOJ’s investigation, including offering consent to search any area which might inappropriately contain material containing classified information. I look forward to the results of DOJ’s investigation.” Trump can’t say anything like that, because you have to be law abiding to say something like that.
Get all the information out at once. Drip drip dripping new information is political poison. I’m not sure why, upon first discovery, the Biden camp did not respond by getting as many people with clearances as they needed to go through every last nook and cranny of every one of his residences and offices, secure every last bit of information marked classified, and then return and announce it all at once. If DOJ asked them not to do that, then stop searching, let the FBI and DOJ’s investigation run its course, then announce it all at the end. Instead, there’s been a slow evolution of material in an office to material in a house to material going back to his time in the Senate, each event breathing new oxygen into the news cycle.
Rapid cooperation is one of the best things you can do to speed the resolution of the case. This is a bipartisan observation. Fighting or dragging out negotiations does nothing but add time and attention to what’s going on and add to the suspicion of investigators. It usually makes little sense - unless you have something to hide or you’re trying to delay matters past a certain event.
When you’re the President, avoid statements which are directly or might be construed as relating to federal criminal investigations of your opponents, your allies, or, well, frankly anyone. Trump was exponentially worse - paradigm shatteringly worse - about this than any President in our nation’s history. For reasons from being the Attorney General’s boss to personal future blowback on you to undermining the justice system, just don’t.
The Supreme Court’s crisis of confidence deepens
While we’re talking about mishandling investigations, some quick thoughts on what appears to be a rather feckless investigation into who leaked a draft version of the Supreme Court’s Dobbs decision to Politico in May, 2022. Last Thursday, the Supreme Court released a report of the results of the investigation, conducted by the Marshal of the Supreme Court and her staff. Included in the report was a letter from former federal judge, DHS Secretary, and senior DOJ attorney Michael Chertoff noting he had reviewed the conduct of the investigation and “[could] not identify any additional useful investigative measures.”
The trouble is, the report is written in an times curiously opaque way, particularly in the context of what was - or wasn’t - done by investigators in the context of the Justices themselves. The report notes in great detail the 126 interviews of 97 employees, that all swore out affidavits they had not leaked the draft, the fact that investigators obtained Court-issued laptops and mobile devices as well as personal call, text, and billing records from each employee, and any number of other precise details (did you know they “obtained outside assistance with a fingerprint analysis of an item relevant to the investigation”? Yep, see p. 17).
What the report doesn’t do is detail what, if any, investigation was conducted of the Justices themselves. In fact, the otherwise precise report is so hazy that there’s a reasonable question if the Justices were even interviewed at all. Stepping in to the rescue/damage control (see “Political crisis management and communications,” above), the Marshal of the Supreme Court issued a statement the day after the release of the report:
During the course of the investigation, I spoke with each of the Justices, several on multiple occasions. The Justices actively cooperated in this iterative process, asking questions and answering mine. I followed up on all credible leads, none of which implicated the Justices or their spouses. On this basis, I did not believe it was necessary to ask the Justices to sign sworn affidavits.
Naturally, this resolved no questions while raising many others:
Why the choice of the phrase “spoke with” rather than “interviewed”? Were the Justices actually interviewed?
Specifically, was each Justice asked each specific question that all employees signed an affidavit about:
Did you disclose the Dobbs draft opinion to any person not employed by the Supreme Court?
Did you disclose to any person not employed by the Supreme Court any information relating to the Dobbs draft opinion not made public through means authorized by the Court?
Have you provided all of the pertinent information known to you relating to the disclosure or publication of the Dobbs draft opinion?
Were the court-issued mobile devices of the Justices reviewed, as they were for Court employees?
Were the Justices asked for, and did they provide - as Court employees universally did - the phone, text, and billing records for their personal devices?
If the Justices were not asked these questions, why not?
What questions did the Justices ask of you?
Did other employee similarly have the opportunity to ask questions of the investigators?
Was all of this information provided to Michael Chertoff for his consideration in formulating his opinion that there were not “any additional useful investigative measures”?
What is the impact on the morale of the Court, the Court’s employees, and the day-to-day functioning of the Court to have disparate levels of employee accountability?
As an investigator, one of the hardest questions to ask can be the most direct: did you do it? Will you provide me the information to prove it? The higher the position of the person, the harder it can be to ask that question - especially when that person or people are your boss. The Marshal of the Supreme Court and staff weren’t the right group to conduct this investigation - they’re underneath the people they’re investigating, they lack the day-to-day experience conducting such investigations, and they lack the investigative authorities (such as issuing subpoenas or conducting forensic analysis) needed for effective investigation. Would the FBI have been much better suited to conduct an investigation? Yes. Were there strong institutional incentives not to do so? Absolutely. What is the impact on the Court if a Justice confesses to leaking the draft? If a Justice lies and is ultimately shown to have lied? At the end of the day, I’m not sure the Court actually wanted an answer to the question of who leaked the Dobbs draft. They got the outcome they wanted.
The picture at the top of this post is of a work by James Earle Fraser entitled, "Contemplation of Justice," which sits on the Supreme Court Plaza. The statue depicts a seated female figure contemplating a small figure of Justice that she holds in her right hand. The figure of Justice is blindfolded and cradles a set of scales in her arms against her chest. The blindfold symbolizes the blindness of the application of justice, that the law - and investigations relating to the law - are applied equally to all. From what we know of the investigation into the leak of the draft Dobbs decision, it wasn’t.
One final note. The report cites the Code of Conduct for U.S. Judges as part of the standards of behavior for Supreme Court employees. Funny thing is, you know who that applies to? “United States circuit judges, district judges, Court of International Trade judges, Court of Federal Claims judges, bankruptcy judges, and magistrate judges. Certain provisions of this Code apply to special masters and commissioners as indicated in the ‘Compliance’ section. The Tax Court, Court of Appeals for Veterans Claims, and Court of Appeals for the Armed Forces have adopted this Code.”
You know who hasn’t adopted the Code of Conduct? The Supreme Court. There is NO code of conduct for Supreme Court Justices. Feels like it’s time for one.
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