S3|SS21: Sir, That’s Classified.
Dance Jam
Come, Mr. DJ, song pon de replay. Come, Mr. DJ, won't you turn the music up? All the gyal pon the dancefloor wantin' some more, what? Come, Mr. DJ, won't you turn the music up?
It goes one by one, even two by two, everybody on the floor, let me show you how we do. Let's go, dip it low, then you bring it up slow. Wind it up one time, wind it back once more… (Pon de Replay, Rihanna)
Intro
In August 2022, a search turned up some 300 classified documents stored in former President Trump’s home Mar a Lago. A flurry of conversation, speculation, and denial followed, and many of us were a bit flabbergasted at the audacity of the situation. In January 2023, outlets began reporting that classified documents had been found at the Penn Biden Center, presumably from Biden’s time as Vice President. Again, conversation and speculation. Even comparison and finger pointing. Then, just as the proverbial world was debating the differences between the two situations, reports surfaced that classified documents had also been found at Mike Pence’s home in Indiana…
…and Robin texted Jon saying, “It can’t be that easy to misplace classified documents, can it?!” As you can imagine, the answer was a very cagey International Man of Mystery style: It’s complicated. Now, if you’ve been listening to this podcast for any time at all you know those are magic words of sorts around here, transforming a conversation into an episode topic. So this week, we’re here to break down the situation a little bit more and discuss how this might have happened, the differences between these situations, and how we can know who might have committed an actual crime.
If all of this sounds a little like deja vu, we get it. We did cover this topic fairly generally back in September in our From the Headlines episode on the Espionage Act. While we spent most of that episode talking about the Espionage Act itself - why it was created, why it’s actually kind of controversial, some notable cases that were prosecuted under the Act, we did talk about how it might apply to Donald Trump in light of the discoveries at Mar a Lago. However, it’s been a few months and there’s new information to add in there. We’re also going to focus more on the documents situation this time. Sure, there may be a little overlap, but we promise we’ll keep that to a minimum.
Alright - so I think we have to start with my original question: How, exactly, does this happen?
How might [redacted] have happened?
As we get into this, I think it pertinent to get real about the nature of classified materials and how and why things actually become classified. Broadly speaking, the US Government classified information to protect national security interests. But that’s kinda a no-brainer. Practically, this refers to information that may cause damage to the United States or its interests, domestic and abroad. Most commonly, people imagine this means information about military plans, weapons systems, intelligence activities, diplomatic communications, or… aliens.
And, yeah. Information in all of those categories can and is classified. Even information about aliens. But there’s also a world of mundane minutiae that gets classified. Things like employee reviews, or menus, or administrative things like ordering office supplies. Classified information isn’t all sexy and mysterious all of the time. In fact, I’d say about 90% of the time it is really… really boring. Just… just go read some old declassified documents. I guarantee you your disappointment will be immeasurable and your day will be ruined.
It’s painful, really.
There are three levels of classification - Top Secret, Secret, and Confidential. Allow me to define in order of ascending intrigue, mystery, and film noir sexiness:
Confidential information is the least intriguing or mysterious. Zero sexy. This is information that could reasonably be expected to cause damage to national security should it be disclosed without authorization. We’re talking things that may cause a diplomat to be embarrassed if it became public, or dinner plans, or maybe, maybe information about law enforcement activities. By and large, you will finish reading confidential information and go… “Okay, but… why was this classified?”
Secret information. Somewhat intriguing. Sufficiently mysterious. Girl-next-door/shirtless-guy-in-typically-non-shirtless-places-but-you’re-not-mad-about-it sexy. This one, naturally, turns up the heat a bit. This information could cause serious damage to national security if it is disclosed without authorization. This is the level where you’ll be more likely to find information about military plans, intelligence activities, vulnerabilities in infrastructure, diplomatic communication, and so on. But, still, seriously, the bulk of this information will be relatively boring to the average reader. You’ll walk away going… “Eh. That… was something. I’m not sure what, but something.”
Top Secret information. Much intriguing. Such mysterious. Wow. Femme fatale/pool-boy or Magic Mike or Hugh-Jackman-in-a-comfy-knit-sweater-with-the-sleeves-rolled-up-slightly-offering-you-a-warm-confection-and-cozy-drink-telling-you-to-relax,-dinner-is-almost-ready-and-the-kids-are-doing-their-homework-quietly,-tell-me-about-your-day levels of sexy. This is what you’re looking for. The real secrets. Like. Classified classified. This is the information that could reasonably be expected to cause exceptionally grave damage to national security. I love this definition, because the US government isn’t really prone to using flowery or descriptive language, but “exceptionally grave” always strikes me as so dramatic. Now, to be fair, it’s not an inaccurate description. This is likely where you’ll find information about highly sensitive military or intelligence operations (like planning to take down the leader of a terrorist organization), or sensitive foreign government activities, or documents about the US nuclear program. You’ll finish reading this and probably say, “I have no idea what this is about, but it sounds serious.”
And theeeen there’s… above Top Secret. You’ve seen it in every tacky Hollywood movie ever. And I’m here to tell you… it doesn’t exist. Really. Top Secret is where it ends. That’s why it’s top secret. There are additional controls that can be added to the classification, and they further restrict who can access the information, but they aren’t increasing the classification level at all.
(Office of the Press Secretary, 2009)
Alright. So who determines whether information is classified at a given level? Well, here’s the thing. There are only a handful of people who are able to take information and say, “This is Top Secret.” These people have “original” classification authority. And when I say “a handful,” I mean it. Literally, the President, Vice President, Agency heads and officials designated by the President, and a very few officials who have been given this authority by one of these aforementioned people. Evvvverybody else working with classified information has what is known as “derivative” authority. They can’t give any information a new classification directly, they can only work in fairly narrowly defined bands of authority to maintain the classification levels already defined by “original” classification authorities. (Office of the Press Secretary, 2009)
Confusing? Basically, I can’t just grab a piece of information and go, “this is Secret now because I said so.” That’s really all that matters.
If you are one of the massive majority of people working with classified information, you basically have to use a classification guide to match the information you have to the closest category in the guide and use that to determine the classification level of what you have.
Trying to find where your piece of information fits into the guide is… we’ll just say it isn’t easy because I don’t want to lose my job by talking about it too much. So what happens when you’re not quite sure what level the information you’re handling is classified at? Obviously you look it up and spend the literal hours sometimes needed to classify it correctly.
Or you just slap “Secret” on it and toss it on the pile and move on to the next piece of work that’s probably due 5 days ago but you just managed to dig out to this point.
I’ll never tell.
Now the same Executive Order (that is, Executive Order 13526) that determines what the classification levels are also describes who has access to that information and how it must be handled. The key elements of the process for moving classified information from person to person include:
Security clearance: Individuals who will be handling classified information must have the appropriate security clearance. This requires a background investigation to verify their suitability for access to classified information.
Need to know: Only individuals with a "need to know" the information are authorized to receive it. This is determined by the original classification authority and takes into account the individual's official duties and responsibilities. Just because someone is cleared to access Top Secret information doesn’t mean they need to know that Top Secret information. The scientists working on nuclear power plants proooobably don’t need to know anything about the movements of the Navy’s 7th fleet. Even if they had next month’s plans in their hands, they’d be obligated not to read it because they just don’t need to know. Honestly, I find a lot of people honor this. Because with knowledge comes the responsibility of having that knowledge. The more you know, the more likely you are to be held responsible if something goes sideways. And nobody wants to be dragged up in front of Congress to answer questions.
Information marking: Classified information must be marked with the appropriate level of classification, the date and reason for classification, and the identity of the original classification authority.
Security containers: Classified information must be stored in secure containers or rooms when not in use, and access to these containers or rooms must be strictly controlled. Please, please remember this one as we talk about this. Storing classified information correctly is a big deal. It’s one of the most consistent things I see stressed in classified environments. “Is the classified in the safe? Is the safe locked? Have you double checked?” Not everyone is allowed to have access to any given safe, and if you don’t have access but need something in a safe, and the person or people who do have access aren’t around… you wait.
Transmission: Classified information must be transmitted in a secure manner, using approved methods, such as encrypted email or secure file transfer protocols. This is also incredibly important and stressed all. The. time. Chain of custody for classified information is tracked through a combination of physical and electronic means. Chain of custody is tracked to protect classified information from unauthorized access, and this is enabled through ensuring that the proper authority can audit the chain of custody.
Physical tracking involves maintaining a record of who has taken possession of the classified information, where it has been stored, and who has had access to it. This is usually accomplished through the use of security containers, controlled access logs, and distributing keys to access the classified sparingly.
Electronic tracking, as the name implies, involves maintaining an electronic record of who has had access to the classified information and when. This usually happens in the background through the use of security software that can log and track who accessed a given document. Kiiiinda like your browser history for state secrets.
In addition, classified information may be assigned a unique identifier, such as a classification management number or document control number, to assist in tracking its chain of custody.
Security incidents: All security incidents, such as the loss or unauthorized disclosure of classified information, must be promptly reported and investigated. This is one of those things that, in my experience, people just don't mess with. If you lose classified, or accidentally take it home, or otherwise mishandle it, you own up to that real quick-like. The consequences for failing to take appropriate measures can be far too serious.
Of course there are, unfortunately, exceptions to every rule, and you will always find someone who thinks the rules don’t apply to them.
What are the differences in these situations?
So let’s do a quick breakdown of the current state of play in the ongoing saga of classified information being found in the private residences and offices of Joe Biden, Donald Trump, and Mike Pence.
The quick and dirty of it is that roughly 300 documents classified up to the Top Secret level were found at Trump’s Mar-A-Lago resort. It’s unclear how many documents were discovered at Biden’s home and offices, but so far it looks to be between 20 and 30 total. Pence is in a similar boat, with roughly 20 documents being recovered from his private spaces.
Now, none of these documents were stored appropriately. We don’t need to get into the intricacies of where, specifically, what documents were found. Though it is worth pointing out that upon discovery of the classified material in November 2022, Biden’s attorneys immediately alerted the White House counsel’s office, which notified National Archives and Records Administration (NARA), which took custody of the documents the next day. They then cooperated with authorities to examine other locations for further classified. Similarly, Pence’s attorney’s notified the authorities when they discovered classified documents in January 2023, then cooperated with authorities to search for any additional classified in Pence’s personal spaces. (Zarracina & Petras, 2023)
Trump’s saga, on the other hand, is a bit more… complex. In December 2021, 15 boxes of presidential records containing classified material were found at Mar-a-Lago and transferred to the NARA. Several months later, the FBI and the Justice Department conducted a search at Mar-a-Lago and retrieved 33 boxes of records. Given the volume of documents discovered, the Archives informed Trump's team that the documents would be handed over to the intelligence community for a review, which is a standard practice used to assess the potential damage that could have been done by the incorrect storage, but Trump's team asked for, and was granted a temporary delay. They tried to get a second delay, but that one was denied. The FBI later learned Trump may have more documents, and therefore issued a subpoena for them. Trump's lawyers turned over a packet of 38 classified documents, and showed the FBI a storage room where the documents had been held, but refused to allow the FBI to inspect the room further. The FBI later discovered that Trump had not fully complied with the subpoena and still had even more classified documents. This time, they obtained a search warrant for Mar-a-Lago and found over 100 confidential, secret, and top secret documents in the storage room and in Trump's office. Trump attempted to slow the investigation by asking for a special master to review the documents and demanded their return, claiming they were his personal property and had been declassified (side note, this led to a frankly hilarious legal discussion about declassification by Trump just… yelling that documents were declassified, I guess. Protip: that is not at all how the declassification process works.) And then two more classified documents were found in a Florida storage facility used by Trump near Mar-a-Lago and were turned over to the FBI. (Gregorian, 2023)
Soooo. Listen. Two of these people did the right thing. One of them didn’t. It’s that simple. It really just isn’t worth equivocating over this. Biden and Pence should not have had classified documents stored in their personal spaces. But they did what they were supposed to do, reported them, and worked with authorities to find any other documents that may have been missed. Trump resisted turning over the documents at every turn, didn’t cooperate with the authorities, and obstructed the investigation.
How can we know who might have committed a crime?
Given the differences in these three situations, how can we know who might actually be in hot water over these documents? What’s the standard for knowing whether or not an actual crime was committed? Well, this is where we get to refer back to 18 USC 793, The Espionage Act. I know, we’re all so excited - federal laws just make for such engaging reading. But we’ll try to keep it as accessible as possible here.
Oh, and before we move on - huge shout out to Legal Eagle over on YouTube, whose video “Biden’s Classified Docs Are Bad” was part of what inspired us to make this episode, and provided an extra layer of understanding to the layers of ifs and thens that always come with federal laws. (Legal Eagle, 2023)
*some sort of non-awkward transition*
Shall we start with some vocabulary? I think it will be helpful when we move into the actual parameters of the law.
*some sort of acknowledgement*
First up: Let’s talk about NDI - National Defense Information. The category of NDI includes information relating to… “essential defense, industrial, and military emergency energy requirements relative to the national safety, welfare, and economy” (10 U.S. Code § 8720 - Definitions | U.S. Code | US Law | LII / Legal Information Institute, n.d.) that could be used to the injury of the United States, or to the advantage of any foreign nation. Within the scope of the Espionage Act, that information also carries an additional important qualifier: It must be “closely held,” which has been defined by precedent to basically mean “actively withheld from the public.”
Interesting side note - “classification” is considered circumstantial evidence that information is closely held. It is one of the factors used to determine whether something falls into the category of NDI, but it’s not the primary qualifier.
Next, we need to define the word “willfully.” A lot of the conversation about whether or not these presidents and vice presidents may have committed a crime under the Espionage Act has to do with whether or not they did what they did (uh, or didn’t do) willfully. In this context, that word means they behaved this way with an intent to deceive, or to withhold information. It has to be more than an honest mistake - there has to be an underhanded motive to the action or inaction.
Finally, we’ve got to talk about gross negligence. Well, we probably need to start by talking about regular negligence in a criminal context. When someone is charged with criminal negligence, the prosecution is making the case that the person ignored a known or obvious risk to the safety of others, and engaged in behavior that is significantly different than what an ordinary person would do in similar circumstances (Criminal Negligence – Defintion, Application & Defenses, n.d.). This would be like turning left at a red light, firing a celebratory shot into the air, or dropping a cigarette butt in dry grass.
When we’re talking about criminal liability relating to NDI under the Espionage Act, the standard is raised a bit higher to gross negligence. Now, there’s not one uniform definition of gross negligence that has been applied across the board, but the general consensus is that the person must clearly understand what the consequences of their behavior could be, and still display a wanton or reckless disregard for the reasonable standard of action.
Outside of a national security context, this might be something like leaving a loaded firearm out in the presence of a child, or driving the wrong way down a highway at high speeds. When we’re talking about NDI, it means fully understanding the contents and purpose of a document and choosing to handle it in a way that could cause significant danger to the United States or personnel representing it in that sensitive context - leaving it out on a coffee table unattended in a house full of foreign guests, or something.
Okay. I think we’re ready to move into the Flowchart of Espionage™, by which we will determine if these esteemed* leaders could have done real crime with these pesky papers. We’ll start at the top and work our way through each of the branches. And I’ll probably make a nice version of it and post it to social because why the hell not. But one thing we want to prime you to notice as we move through the various contingencies is that the having of the documents - even in a not so approved location - isn’t really the most important factor in the situation. What matters the most is what happens once the docs are discovered.
Disclaimer: Neither of us are lawyers, though we did learn this information from people who are lawyers. And, this is absolutely not legal advice, or probably anything you should base an actual court case on. We’re pretty confident it’s good enough to impress your friends and colleagues, but… that’s about all we’re willing to assert.
First question: Did the President or Vice President have lawful possession of the NDI?
We’ve already covered who is allowed to possess these kinds of documents, when, and why, so we won’t rehash that. This question doesn’t really establish whether or not the person who has the goods did anything illegal, but the answer to this question kind of sets everything else up.
For the first part of this conversation we’re going to proceed as though the answer is no, he shouldn’t have had the documents. Like we said a minute ago, this isn’t an ideal situation to be in, but it’s not inherently a big deal. But now we’ve got some follow up questions we need to ask.
Let’s start with: Did he wilfully attempt to, or successfully, communicate, deliver, transmit it or any other synonym for “share it with” with someone who isn’t entitled to have it? You’ll notice that willfully shows up in the conversation right away here. Right from the jump, the question isn’t even, “did anyone who shouldn’t see it see it.” The question is, “did you share it with ineligible people on purpose.” So to even begin to establish whether or not a crime occurred, we have to tease out whether or not the holder meant to share the information.
If the answer is yes, well then we can stop right here. We’re firmly in crime territory, mister. And we should make it clear that they’re not just out here taking folks’ word on their intentions. This is the whole purpose of investigating, appointing special counsel, all that. The Department of Justice is doing their due diligence to determine if everyone’s assertions line up. That’s one reason that the inconsistencies in Trump’s stories are concerning.
Now, if the answer is no, we have another question to answer. Did he willfully retain, and fail to deliver the information to someone who does have legal authority to at least possess it? Here’s willfully again, and it’s coming in clutch with the reason why Mike Pence and Joe Biden likely aren’t guilty of any actual crimes regardless of when those documents entered “work from home” status. It would appear that neither of them were consciously aware that the documents were where they were, and they both (again, apparently) voluntarily notified and handed the documents over to the appropriate authorities. It all comes down to the deliberate intent to hold on to that paperwork. This isn’t a great situation to be in, but it’s probably not criminal.
If the answer is yes, might be crime. Can’t say for sure without investigation, but it looks like we’re back in the no-no zone.
Now, back to the top! We’re going to ask our initial question again: Did the President or Vice President have lawful possession of the NDI? But on this side of the chart, the answer is yes. So we’re going to move straight on to the next question! …Which sounds almost exactly like the first branch of the other side.
Did he willfully share it with someone who shouldn’t have it? If the answer is no, again we proceed to the next question. All the same factors at play here.
Ok, Did he willfully retain it, or refuse to give it to a government employee entitled to receive it?
No? Not awesome, but probs not a crime. But if the answer is yes, then things aren’t looking great for his “not a crook” status. In fact, we’re inching much closer to BFD than any of the other options so far.
And then we have to ask a little side question here. This is where the gross negligence standard comes in: Was he grossly negligent in his behavior, allowing the information to be removed from its proper place of custody, or to be delivered to anyone who shouldn’t have access to it, or to be lost, stolen, abstracted, or destroyed?
- OR -
Did he have knowledge that the NDI had been illegally removed from its proper place of custody and fail to make a report to his senior officer (or any other relevant officer).
If the answer to either of these is yes, then there are grounds for indictment regardless of whether or not he willfully took, shared, or retained the information.
Right, so then let’s back up a little bit. Because we have to ask the big hairy question. What if he DID wilfully attempt to, or successfully, communicate, deliver, transmit it, etc. with someone who isn’t entitled to have it?
Oh, crime. Proceed to jail for about 10 years, do not pass go, do NOT collect $200 (and we PROMISE they’re watching those bank accounts). In fact, he would likely be on the hook for a hefty fine as well.
Wait… How is the penalty for this only a fine and up to 10 years in the hoosegow?!
Word nerd interjection: The term hoosegow, which you may or may not have heard in your grandpa’s favorite Kris Kristofferson western, likely comes from the English mispronunciation of the Spanish word juzgado, which means court. And now back to our regular programming.
Hello, and welcome back to the complexities of U.S Law. There are actually a few different statutes that can be applied when NDI is actually leaked and they carry a variety of different penalties. And then there’s 18 USC 794 which deals specifically with the transmission of national security information to an enemy of the United States during a time of “war.” The penalties there include life in prison, or even death if the information causes the death of a US asset.
So yeah, it’s not always as simple as our flow chart makes it sound. But in these cases, we don’t have reason to believe that these documents caused this level of repercussion (or, in Pence and Biden’s case, did more than collect a bunch of dust). If for some reason more information surfaces, then we definitely reserve our right to revisit this conversation.
Closing Conversation About [Redacted]
The number of these situations suggests that people aren't following procedure and/or that we have “over-classified” documents?
Awkward [redacted] plug
Good News
Brave Bessie is getting a Barbie! Don’t worry, we’ll explain.
Born in 1892, Bessie Coleman was the first Black and Native American female aviator, first Black person to earn an international pilot’s license and the first Black woman to stage a public flight. Coleman was born poor in Texas, and helped her mother make ends meet by picking cotton though she always dreamed of more.
When she learned that women in France had more rights than women in the US - especially Black women - she saved her money, learned French, and sailed to France to become a pilot. On June 15, 1921 she received her international pilot’s license.
She returned to the US shortly after, and began amazing crowds with her amazing stunts, like flying figure 8s and walking on the wings while her plane was in midair, earning her the nickname Brave Bessie. She traveled the country speaking, teaching, and performing and even refused to perform for segregated crowds.
Coleman died in 1926, at age 34, in a plane accident but left behind a legacy that inspired generations of Black, Native American, and female pilots. Now Mattel, the makers of the iconic Barbie doll, has released a new doll to help celebrate Bessie’s story and hopefully help more people discover it.
References
'Brave Bessie' Gets Her Likeness on New Barbie as Mattel Honors the First Black Female Pilot. (2023, January 29). Good News Network. Retrieved February 11, 2023, from https://www.goodnewsnetwork.org/bessie-coleman-barbie-doll/
Criminal Negligence – Defintion, Application & Defenses. (n.d.). Shouse Law Group. Retrieved February 9, 2023, from https://www.shouselaw.com/ca/defense/laws/criminal-negligence/
Doyle, C. (2017, April 27). Criminal Prohibitions on the Publication of Classified Defense Information. DOD IG. Retrieved February 11, 2023, from https://www.dodig.mil/Portals/48/Documents/Programs/Whistleblower/2010_1206_CRS_Criminal_Prohibitions_Defense_Information.pdf?ver=2017-04-27-105018-560
Gregorian, D. (2023, January 10). Biden classified docs vs. Trump classified docs: What's the difference? NBC News. Retrieved February 11, 2023, from https://www.nbcnews.com/politics/justice-department/biden-classified-docs-vs-trump-classified-docs-difference-rcna65087
Legal Eagle. (2023, January 31). Biden's Classified Docs Are Bad. YouTube. Retrieved February 9, 2023, from https://youtu.be/POYDOWNq-jE
Office of the Press Secretary. (2009, December 29). Executive Order 13526- Classified National Security Information | whitehouse.gov. Obama White House Archives. Retrieved February 11, 2023, from https://obamawhitehouse.archives.gov/the-press-office/executive-order-classified-national-security-information
Stewart, J. (1973). The Espionage Statutes and Publication of Defense Information. Scholarship Archive. Retrieved February 11, 2023, from https://scholarship.law.columbia.edu/cgi/viewcontent.cgi?article=4031&context=faculty_scholarship
10 U.S. Code § 8720 - Definitions | U.S. Code | US Law | LII / Legal Information Institute. (n.d.). Law.Cornell.Edu. Retrieved February 9, 2023, from https://www.law.cornell.edu/uscode/text/10/8720
Vladeck, S. (2014). Prosecuting Leaks under U.S. Law. Just Security. Retrieved February 11, 2023, from https://www.justsecurity.org/wp-content/uploads/2015/11/ABA-Leak-Prosecution-Chapter.pdf
Zarracina, J., & Petras, G. (2023, February 10). Pence, Biden, and Trump's classified documents compared by the numbers. USA Today. Retrieved February 11, 2023, from https://www.usatoday.com/story/graphics/2023/02/10/pence-fbi-search-classified-documents/11229384002/
