WHAT NOT TO DO WITH CLASSIFIED DOCUMENTS

I was hearing about all this stuff around Trump-related court cases and some being consequential far beyond those cases. Knowing nothing about any of that I thought I would read about recent document mishandling instances from folks in the US government.

RECENT MISHANDLING OF CLASSIFIED DOCUMENTS

Forbes (2023). Not Just Trump And Biden: Every Administration Since Reagan Mishandled Classified Records, National Archives Finds. https://www.forbes.com/sites/brianbushard/2023/05/17/not-just-trump-and-biden-every-administration

“Since 2010, the National Archives have received calls from roughly 80 libraries that have received classified papers sent from lawmakers, including members of Congress.”

SIGNIFICANT DOCUMENT DEBACLES OF THE LAST DECADE

CLINTON:

When she took up her new role as US Secretary of State under Obama, Clinton was asked by the State Department to cease using her insecure BlackBerry and the private server in her home and instead only use a secure desktop for official communications. She declined, for mere convenience, but did not disclose she'd done so and never used an official state.gov email account during her time in government.

Clinton’s personal server was located in her home from 2009 to 2013, before being sent to a data centre in New Jersey and later to a Denver-based IT firm who managed her email. Emails on her service were discovered to have been unencrypted in 2009 and vulnerable to interception while she was Secretary of State. As early as 2009 officials expressed concerns over violations of government record-keeping procedures by Clinton and her staff.

In 2012, years into her tenure, a FOIA request sought Clinton’s emails but was responded to with acknowledgement that no records for the Secretary of State were to be found. In 2013, a hacker then accessed classified documents via emails between Clinton and a longtime family friend. The scandal resulted in the State Department requesting official documents and emails from Clinton and prior Secretaries of State in the Summer of 2014.

The accepted narrative was that Clinton sent more than 30,000 emails (in printed form, not searchable digital documents — which hits me like paying your rent in loose dimes) and “withheld” around 31,800 more (due, it was said, to their being personal and not government-related.) Part of the running narrative at that time included Clinton's staff and legal team contacting her computer services provider, Platte River Networks (PRN) in December of 2014, to change the server's retention period to just 60 days. They did so benevolently it was said, for security reasons. It just so happened that doing so allowed almost 32,000 older emails to be deleted, by default, from servers.

Only later did it come out that it wasn't until the existence of the Clinton server became publicly known, in March of 2015, and later a subpoena issued for any and all of Clinton’s Benghazi-related emails, that a technician with PRN actually erased Clinton’s emails. With this discovery, of course the PRN team agreed to provide the FBI with all the hardware that once stored those deleted emails. In 2016, reporters shared that no information had been made public about whether or not the nearly 32,000 deleted emails were ever able to be retrieved by the FBI.

In various debates, such as against Bernie Sanders, and interviews with the press, Clinton continually affirmed "I did not send classified material, and I did not receive any material that was marked or designated classified." Still, of the 30,000 paper emails handed over to the FBI investigation, 2,093 contained classified “Confidential” information, 65 emails were classified "Secret" and 22 contained "Top-Secret" information. We don’t know anything more about the contents of those emails.

The investigation determined there was no evidence Clinton's server or email account was compromised by a hacker or foreign government. But, of course, there was no evidence they weren't, either. By her actions she made that a real possibility. Aside from security risks, the report also stated "[Clinton] did not comply with the Department's policies that were implemented in accordance with the Federal Records Act." (At the time of the investigation, in 2015, there were more than 38 Freedom of Information Act lawsuits, before 17 different judges, against Clinton. How significant was that? In June 2016, the State Department estimated it would take 75 years to complete the review of all the relevant documents in these dozens of cases. I kid you not.) The report also stated that Clinton and her senior aides declined to speak with the investigators, while the previous four Secretaries of State did so.

Each of those findings directly contradicted everything Clinton and her aides said on the record to that point. However, though there was strong evidence Clinton mishandled documents, for her pleasure and convenience, then she and her team lied about it and concealed and destroyed evidence at every stage — in what the former head of the Justice Department's Office of Information and Privacy called a blatant circumventing of the law, deliberately impeding both Congressional subpoena and FOIA requests while destroying the public record — she would not be held responsible in the least. Amazingly, investigators determined that, "Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgement is that no reasonable prosecutor would bring such a case." More amazingly still, investigators determined she was not "technically sophisticated" enough to understand what the classification markings (Confidential, Secret, and Top-Secret) meant. This was deemed consistent with Clinton's own public statements that she did not send or receive classified documents and simply did not know the meaning of those silly little markings on various documents. Comey, head of the FBI investigation, stated that there was "evidence of mishandling" of classified information and that he believed that Clinton was "extremely careless; I think she was negligent." Despite that, he defended the FBI's recommendation against bringing charges, stating "[charges] would have been unfair and virtually unprecedented..."

In April 2017, after the case was closed, The New York Times reported that during the investigation the FBI was provided documents acquired by Dutch intelligence, previously stolen by Russian intelligence. Those documents were written by a Democratic operative who asserted Attorney General, Loretta Lynch (who, you may recall, met in secret with Bill Clinton on her jet on the tarmac at the Phoenix Airport right before the case was closed) would not allow the investigation into Hilary and her emails to go too far. In a remarkable coincidence, Lynch’s tenure as Attorney General lasted just the length of the Clinton investigation, 2015-17.

Later, in December 2018, judge Royce Lamberth called Clinton's use of a private server for government business "one of the gravest modern offenses to government transparency." And then the United States Department of State completed its own internal investigation in September 2019, citing 588 significant security violations. The review found 38 current and former State Department officials culpable of mishandling classified information. But, though Clinton's use of a personal email server significantly increased the risk of compromising State Department information and thereby national security, the Department of State determined "there was no persuasive evidence of systemic, deliberate mishandling of classified information."

BIDEN:

On Nov 2nd, 2022 Biden's personal lawyers discovered classified documents in an office at a Washington think tank. The following day the FBI and DOJ conducted their own search and found more. The documents discovered there were marked "sensitive compartmented information", indicating the material could involve intelligence-gathering methods and sources. The documents reportedly included information about Ukraine, Iran, and the UK and dated from his time as vice-president and senator. So an unstated number of documents mishandled and potentially available to eyes without sufficient clearance for many decades, given that Biden first became senator back in '73.

The Washington Post reported that Biden, his team, and his lawyers were inappropriately reviewing and concealing information about the files. Of course, Biden's staff and personal attorneys did not have appropriate security clearance to do so. This forced the DOJ to issue a letter confirming their lead in the investigation and that Biden and his team and lawyers should not be involving themselves. With that, the DOJ also demanded details about other locations they should be searching for further documents. As a result of the obfuscations a special council was initiated.

Weeks later, Dec 20th, more classified documents, including sensitive material about Afghanistan, were found by the Justice Department in the garage of Biden's Delaware home. On Jan 9th, 2023, two months after the initial discovery, the Biden White House disclosed to the public the first batch of classified documents, back in November. Somehow they forgot to mention the Dec 20th discovery.

Though no one had any facts aside from what Biden's team was putting out, effectively all the reporting that followed framed Biden as a cooperative career public servant who diligently self-reported his accidental wrongdoing as soon as it was clear an error had been made. That was not the situation.

The same day as this partial public disclosure, more documents were found and then still more the following week, Jan 12th. Three new documents in separate locations in less than seven days. The disclosure of those discoveries to the public were also the second time a disclosure was said to be the whole story but later shown not to be so. In fact, the White House special council had said the review of Biden’s homes was completed on the Wednesday while knowing an additional five pages were discovered the following evening, Thursday. And the documents kept coming.

A week after that, Jan 20th, the FBI felt they needed to conduct one more 13 hour sweep of Biden's entire home, where six more documents were found. In total, investigators collected 90 sensitive and classified documents (including documents classified as top-secret) from Biden's office in DC and in his home in Wilmington, Delaware.

All of this malarkey and shenanigans led to additional FBI searches of other Biden residences on Feb 1st. It also led them to the University of Delaware on Feb 16th. Those resulted in further confiscations of sensitive and classified documents. What was found included papers and notes dating back to 1977. The total number of documents is unclear.

Special counsel later conducted 173 witness interviews of former and current officials close to Biden. One of the disclosures from those interviews was that Biden had read out classified information "nearly verbatim" from his notebooks to his ghostwriter, Mark Zwonitzer, "on at least three occasions." Worse, the investigation that followed found Zwonitzer to have deleted recordings of all his interactions with Biden. Those erasures were not accidental and did not happen after the publishing of his book or something. No. The investigation showed that only after learning of the federal probe into mishandling of classified documents — but before investigators were able to contact Zwonitzer — did he destroy all recordings associated with the president.

The special council investigation uncovered evidence that "President Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen" but still did not charge him or his staff. Biden was not charged with any offences related to mishandling of classified and sensitive material because he was ultimately deemed too old and infirm. He couldn't be criminally responsible, you see, because he was an "elderly man with a poor memory" and "diminished faculties in advancing age." As such he could not be expected to reliably recall which documents were moved by whom to where and for what purpose, which would inevitably result in reasonable doubt surrounding intent. As such, they said, it's plausible that documents were brought to these locations (his personal office in DC, the garage of his home, a room next to the garage, his home library, and the University of Delaware) by error or even without his knowing. Amazingly, special council judged that even the actions of Zwonitzer, the ghostwriter, could also be viewed as "unintentional" and no charges were laid.

In the end, the special council investigation lasted a year and the House Judiciary Committee investigation has lasted more than 18 months and is ongoing. We don’t know how many documents were mishandled, the number of pages of documents, or the contents of those documents. Biden's lawyers have continued to assure the public the number of documents mishandled were relatively small and the contents basically insignificant. Seemingly no one views this as a persistent lack of transparency or the reckless mishandling of sensitive material nor, as such, evidence of serial violations of federal law by everyone close to the president.

TRUMP (the one we actually care about):

In August 2022, an FBI search of Trump's Mar-a-Lago property found approximately 300 classified documents. (Compare that to some unknown number, higher than a hundred, that Biden mishandled and withheld and thousands [2,000? 32,000? 62,000?] mishandled and withheld by Clinton.)

Trump was immediately charged with 31 counts of retaining national defense information. Each charge was for the possession of each distinct document. And each charge could, it was said, potentially result in a prison sentence of ten years. So, this instance of document mishandling may have resulted in a 310-year jail term. Still, ten of those documents in question were handed over to the government upon request in June 2022, prior to the FBI search, and 21 were recovered in August. (Recall Clinton, in violation of State Department recommendations, held not less than 2,000 Confidential, 65 Secret, and 22 Top-Secret documents and more than 60,000 on insecure servers, storage devices, as well as on back-up services not within her control. She also did so covertly without informing the FBI or security officials and against all requests and norms. No charges.)

Six additional indictments came around the same time, five relating to conspiracy to obstruct justice and withholding documents and one indictment for making false statements. Later two further counts came related to apparent attempts to delete surveillance footage at Mar-a-Lago. (You see, Biden and Clinton and their teams illegally reviewing and destroying evidence at every stage, including voice recordings, emails, etc, and then found to be lying about that was obviously irrelevant to those cases; and, regardless, no charges could result due to their own profound incompetence and the flagrant stupidity of all the people around them. Here, on the other hand, in Trump, we have a man of astonishing genius engaged in an elaborate conspiracy to destroy America and the world who, as a result, must be taken out.)

The content of the documents in the Trump case were also spelled out in detail to the public, unlike with Biden or Clinton. Relatedly, the original indictment also alleged that in the Fall of 2021 Trump showed a classified military map to Susie Wiles, Trump’s political consultant, senior advisor, and campaign manager. (This was a talking point I heard continually when it came out, that Trump was showing off secret government documents to anyone who showed up for a dip in the pool or a game of tennis, most probably Russian oligarchs and Vladimir Putin himself. Obviously. Someone even told me this recently.) In June 2024, the judge responsible for the case, Judge Cannon, ordered the paragraph about the map and Wiles removed from the indictment because Trump was not being charged with anything in relation to the map. (You see, Trump, unlike Clinton, was not sharing critical classified documents with the whole world, despite this becoming a key talking point in the media and among the public. Still, immediate and severe charges arrived for only one of these people — and not the person who the FBI said may have gifted maybe tens of thousands of government documents of all classification levels to hackers and foreign governments.)

And then the whole case imploded:

June 21, 2024

Judge Cannon hears arguments from Trump's attorneys seeking to have the classified documents case dismissed on the grounds that special counsel Jack Smith was unlawfully appointed.

June 27, 2024

Following three days of hearings, Judge Cannon orders an additional hearing to determine whether prosecutors improperly used evidence protected by attorney-client privilege to secure their indictment against the former president.

July 1, 2024

In a radical decision said to affect Trump's classified documents case, the US Supreme Court ruled a former president is entitled to "presumptive immunity" from any and all criminal prosecution for official acts taken while in office. Of course, now debate rages about what constitutes an “official act.” One Supreme Court judge proposed that something as absurd and severe as a president having a political rival executed could be conduct deemed immune from criminal prosecution.

July 15, 2024

The classified documents case against the former president was dismissed by Judge Cannon on the grounds that Jack Smith was appointed special counsel overseeing the case without being appointed by the president or confirmed by Congress — making his appointment unconstitutional.

The decision was not arbitrary or wildly partisan as far as I can tell, despite what I've been told. Appointments of special council, as in the case of Robert Muller and Jack Smith, may be seen as unlawful for a variety of reasons. I found several reasons spelled out in a law review article published long before this case or the FBI search of Trump's property.

Since 1999, the Department of Justice has had regulations providing for the appointment of special counsels who possess “the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.” So, what's wrong with that? Well, there are at least three problems:

1) All federal offices must be “established by Law.” However, there is no statute authorizing such an office within the Department of Justice.

2) Even if you overlook the absence of statutory authority, there's also no statute authorizing the Attorney General to appoint a special counsel. This can only be done by the President with the advice and consent of the Senate.

3) Under the Appointments Clause, only "inferior officers" can be appointed by department heads and only if Congress directs them to do so by statute. In all circumstances, special counsel is, by definition, a superior officer and thus cannot be appointed by any means other than presidential appointment and senatorial confirmation regardless of what any statutes purport to say.

SO WHAT?

Me: Well, I've gotten into a whole lot of trouble with a whole lot of people over Trump-related things in recent years.

You: A whole lot of people?

Me: Yes.

You: What are we talking about? Like, trolls on social media?

Me: No.

You: Like who, then?

Me: Most of the people I know.

You: Trouble? On what grounds?

Me: Mostly on the grounds that I'm not a fan of scapegoating. And that I think people should be charged and convicted of crimes they've actually committed. Oh, and that I also believe the law should not be applied in a grossly selective manner. [See above] Offensive, right?

You: Doesn't everyone, or the vast majority of us, agree with that?

Me: Oh, no. Try it out some time. This sort of thing — and it always comes as a surprise to me, as well — enrages many people. People don't disagree and it doesn't upset them: suggesting that scapegoating or wrongful conviction is bad actually enrages people. Most enraged are folks who advocate for criminal justice reform or are passionate about helping convicted criminals get out of prison. Sounds hyperbolic, right? Well, just try it out. Not in the abstract, not hypothetically, but with specifics. And find someone who thinks the legal system is rigged or that murderers and arsonists should have lesser punishments than people who use the wrong words.

You: So, give me an example of this.

Me: Well, in one particularly heated and now notorious conversation, a friend was telling me, among a much broader conversation, that "Trump should be in jail." Though I've never had any like for the Trump and can think of a dozen things he should have at least been charged with or received some kind of significant penalty for, but somehow skirted, I believe it's also true Trump has had very serious allegations levelled against him which proved legally indefensible or actually were part of a wild conspiracy enacted by what amounts to half of society. (Most egregiously the suite of charges around disinformation, election interference, and conspiracy with Russian officials/spies that now sit under the umbrella of 'Russiagate.' But also "stolen files", "very fine people", "corrupting faith in our elections and legal system", "found guilty of rape" and so many others. Just think of the local and global impact of these fabrications and that most folks still accept and repeat them despite resounding debunkment.) As such, with so many real and false accusations on the table, I wanted to know for what my friend thought the slimy businessman, former reality TV star, and 45th president of the United States should be wallowing in prison for. "For what?" I asked. Having surely never received or expected a response other than "Obviously!", my friend nearly fell out of his chair. He couldn't believe what he was hearing. He suggested that I was being deliberately obtuse, trying to provoke or something. It was clear to both of us he didn't have a response, which seemed odd. It was almost as though my impropriety had rendered him stupefied. After thinking aloud for a minute or two, eventually he concluded that, regardless of any evidence of real, punishable crimes, we can all agree Trump is clearly a monstrous character who says and does terrible things when he isn't busy lying. Now, if it was someone else and in a different setting I may have chosen to agree and leave it there but, alas, that's not really who I am, we were in a private setting, and I had also just finished my fourth glass of wine. Yes, sure, I suggested, in a sane world the "grab 'em by the pussy" comment would have annihilated any and all of the man's political ambitions and been the last we heard from Trump. For sure. "But," I responded, "thank goodness it's still not a crime in this part of the world to be stupid or to say things other people don't like." Somehow, this landed on my friend like a punch to the face. My friend seemed to think that with this one person, clearly a monster on par with the worst examples of the previous century, people should be willing to violate social norms or personal principles, really any ethical concerns, most certainly any legal impediments, and put this guy away for good. Gulags. My friend was making a case for gulags. Too, my friend appeared to believe I was somehow, mysteriously, insufficiently versed in all the serious threats (to democracy, civilization, nature, and god) posed by this worst of all characters. I offered, just as I've always done, that with all the raging wildfire-levels of smoke around seemingly everything Trump has ever touched, even a couple of idiots fresh out of law school should be able to locate some (any) actual fire. I offered that if a legal system, with unlimited resources and time, as we've seen, can't muster a sufficiently damning case then the most likely scenario was that we, those of us cheering on the prosecutorial side, may have been drinking a little too much of the Kool-Aid. I was then told that people can get away with anything, especially those with money. I said that I didn't think that was true. More consternation was seen, heard, and felt. I referenced the wealthiest, most well-connected, white dudes anyone could name: Madoff and Bankman-Fried, who got far longer sentences for their white-collar crimes than many murderers. That was just too much for my friend. As for me, I was suddenly confronted with a phenomenon that I had previously disregarded as merely a kind of joke: Trump Derangement Syndrome.

You: Hm.