All the president’s papers

Executive Order 12356 of April 2, 1982, instructs government agencies and workers to take specially designed measures to protect the government’s most sensitive intelligence.

“Controls shall be established by each agency to ensure that classified information is used, processed, stored, reproduced, transmitted, and destroyed only under conditions that will provide adequate protection and prevent access by unauthorized persons,” the order reads.

Knowingly violating those “controls” is a crime—punishable by up to five years in prison.

Now, both the current U.S. president and his predecessor are under investigation for the possible mishandling of classified documents. In August, FBI agents raided the home of former President Donald Trump on suspicions he improperly retained boxes of confidential records at his Florida Mar-a-Lago estate. And last week, attorneys for President Joe Biden confirmed the discovery of a handful of classified records in a Washington, D.C. office as well as at the president’s home in Delaware.

Charles Stimson, manager of the National Security Law Program for the Heritage Foundation’s Edwin Meese Center, says there’s a few critical questions at play.

“The president and the president alone has the authority to declassify documents. The vice president does not,” Stimson said. “[The investigation] needs to get to the bottom of whether he did this intentionally or unintentionally. … I think it’s too early to tell if he’s in any legal jeopardy.”

Bryan Dean Wright, a former CIA officer, adds that the investigation will have to center around the care with which these documents were handled.

“Biden faces a series of potential violations of the law … because he took classified material and kept it in an unsecured location, for years, when he had no declassification authority,” Wright said. “Now, there’s a lot of insistence that he didn’t intend to do so, that breaking the law was an accident. But the law pays little mind to intent in this case. It’s all about establishing gross negligence.”

The first cache of documents was discovered in November of last year at the Penn Biden Center for Diplomacy and Global Engagement, a think tank dedicated to international relations. According to a written statement from Richard Sauber, special counsel to the president, they were found in a locked closet as the organization prepared to move out of its Washington, D.C., office space. The second batch, discovered last week by a subsequent search of Biden’s other properties, uncovered a “small number of additional Obama-Biden Administration records with classified markings” at the president’s private residence in Wilmington, Del. Biden’s legal representatives made both finds.

“The documents were not subject to any previous inquiry by the [National] Archives,” Sauber wrote. “Since that discovery, the president’s personal attorneys have cooperated with the archives and the Department of Justice.”

At a White House newsconference last week, Biden admitted to having mistakenly kept documents in his house’s garage. He repeatedly emphasized that the room, which also housed his Chevrolet Corvette, was locked.

“People know that I take classified documents and classified materials seriously,” Biden said.

Despite their placement, Stimson says the president is not necessarily culpable for the documents turning up at unsecured locations. He noted that presidents pore over thousands of documents, memos, handwritten notes, and more that could all be considered classified. Keeping track of those myriad pieces of information is likely a shared effort by a team larger than just the president.

“I’m frankly reluctant without more facts to say it means anything besides that a person did a mistake under the existing rules that he should have followed or that his subordinates should have followed,” Stimson said.

On Thursday, Attorney General Merrick Garland appointed special counsel Robert Hur to investigate the matter. Stimson said he knows Hur personally and expressed confidence in his work. They met through a mutual friend in the U.S. attorney’s office in Washington, D.C.

“Robert Hur is a very fair, even tempered, prosecutor,” Stimson said. “He worked at the U.S. Attorney’s office in Maryland for a long time, and he’s not going to be a pushover. I fully expect Rob to get to the bottom of this. I hold him in high regard.”

For now, Stimson does have one question he wants answered sooner than later. Biden’s team discovered the first batch of documents back in November. But the White House counsel’s office did not disclose the find to the public until this month.

“According to his lawyers, [he] found these documents before the election,” Stimson said. “Why didn’t we know about it within hours? Who decided not to disclose that to the public?”

Now that Biden and Trump are under investigation for mishandling confidential information, I asked Wright if the U.S. government should consider additional oversight to safeguard classified materials following the end of an administration. As a former CIA officer with overseas experience, Wright expressed some nervousness that the president can declassify just about anything.

“If we allow a [president] total declassification authority, it allows them to declassify and take [or] give whatever the’'d like for whatever reason. To include as a personal memory or trinket or exhibit in their presidential libraries. And that’s wrong, in my view,” Wright said.

He noted that constitutionally, there’s no doubt that power is within the scope of the presidency. Wright suggested that’s perhaps a good thing—especially when it comes to materials that need to be declassified for transparency and public accountability.

Stimson, for his part, isn’t convinced the discovery of Biden’s documents necessitates a change to the existing rules.

“I’m skeptical of grand solutions or systemic fixes,” he said. “We don’t need to change the laws—people who do those things should stop doing them. We have rules in place. They weren’t followed. The ‘why’ is now the open question.”