Jan 24, 2023 - Politics & Policy

What to know about classified documents after high-profile discoveries

U.S. President Joe Biden delivers remarks on the economy and inflation in the Eisenhower Executive Office Building on January 12, 2023 in Washington, DC

Pesident Biden delivers remarks on the economy and inflation in the Eisenhower Executive Office Building on Jan. 12. Photo: Kevin Dietsch/Getty Images

Revelations over classified documents discovered from when President Biden was vice president have raised fresh questions over government records and how they should be handled.

The big picture: Two special counsels investigating both former President Trump and Biden over the handling of records — plus former Vice President Mike Pence's disclosure of documents with classified markings found at his Indiana home — have drawn public attention to a high-level, largely bureaucratic process that carries significant ramifications.

  • It's not immediately clear what type of classified documents were found from Biden's work with the Obama administration and time as senator, or how they got to the various identified locations.
  • Investigators for the Department of Justice discovered additional items with classified document markings during a 13-hour search of Biden's Delaware home on Jan. 21.
  • Pence has previously said he didn't take any classified documents with him when he left the office.

Flashback: A redacted DOJ affidavit that was used to justify the search warrant at Trump's Mar-a-Lago residence in August said that 184 documents with classification markings were found.

  • Of those documents, 67 were marked as "confidential," 92 were marked as "secret," and 25 documents were marked as "top secret."
  • Lawyers for Biden, at this point, have reportedly discovered a smaller total number of documents.
What are the levels of classified information?

There are three levels of classified documents: Top Secret, Secret and Confidential.

Top Secret is the highest level of classification. The classification is applied to documents that could "cause exceptionally grave damage to the national security" if disclosed, per a 2009 executive order.

  • There are additional classifications under Top Secret, including Sensitive Compartmented Information, which is about certain intelligence sources and has further restrictions for access.

Secret is applied to "information, the unauthorized disclosure of which reasonably could be expected to cause serious damage to the national security."

Confidential documents generally contain information that, if disclosed, could "cause damage to the national security."

Who can classify documents — and declassify them?

The president, vice president, agency heads and other officials are authorized to classify information. Presidents also can have the authority to declassify information themselves, but they usually delegate that responsibility out, Bradley Moss, a national security attorney, told Axios.

  • In 2021, there were 671 officials across 16 agencies who had the authority to mark information as Top Secret and 817 who could do the same for Secret information, according to a report from the Information Security Oversight Office.

"Information shall be classified as long as required by national security considerations," per another executive order, which also says that a specific date or event can sometimes be set for declassification.

Trump has insisted that he declassified government documents before taking them to Mar-a-Lago, but he has not provided proof of this.

  • "If you're the president of the United States, you can declassify just by saying, 'It's declassified,'" Trump previously said.
  • The decision to declassify a document is often made in coordination with the agencies that have an interest in the information, per the Brennan Center.

"By and large, presidents are usually not involved in that level of granular detail," Moss said.

  • Declassification involves two steps, per the Brennan Center. First, an authorized official determines information "no longer requires protection." Then "that determination must be communicated so that the protections are removed."
Who handles classified documents?
  • While presidents and vice presidents frequently deal with classified documents throughout their terms, their staff is usually responsible for holding onto the records.
  • "Accidental mishandling of classified information documentation happens all the time, [it] probably happens on a weekly basis," Moss said.
  • "It is usually not a criminal matter because the Justice Department, while they could prosecute accidental mishandling, does not generally wish to do so. It's too much time and effort," he added.
  • Administrative action, such as revoking a security clearance, is the most common repercussion when a document appears to be accidentally mishandled.
The criminal liability question

It's unlikely Biden would face criminal action if the mishandling was indeed an accident, Moss said.

  • "What is possible is that for the staffers who boxed it up and who potentially were involved in storing it, they might face administrative sanctions," he added.

Between the lines: For purposes of criminal liability, the "classification system is largely about bureaucratic rules," the New York Times notes.

  • The Espionage Act, which prohibits the unauthorized retention of national security secrets and is the predominant law in leaking cases, "does not distinguish between different levels of this type of information," Moss added.

Context: Factors that have guided prosecution in previous cases include intentional and willful mishandling of classified information, vast quantities of classified information exposed to support an inference of intentional misconduct, disloyalty to the U.S., and obstruction of an investigation, per the FBI.

  • "I'm not aware, though, of a DOJ ever prosecuting a pure accidental mishandling. Absent one of those two aggravating factors," Moss said.

Of note: The FBI probe into Trump's handling of government records has homed in on whether the former president criminally obstructed the investigation.

The bottom line: If an individual is convicted and sentencing is being determined, then document classifications and the number of documents that were mishandled could come into play, Moss said.

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