How Biden’s and Trump’s classified document cases compare, according to a former top classified records overseer

Steve Reilly

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This week, President Joe Biden joined Donald Trump in finding himself under investigation by a special prosecutor for how he handled sensitive government documents after leaving office.

The turn of events set off a furious debate about whether this is a story about hypocrisy — which is how Republicans see it, after Democrats lampooned Trump over the discovery of documents strewn about at Mar-a-Lago — or one about how government should work, with a president responsibly working with the Justice Department when a mistake came to light.

There are clear differences in the two situations: Biden’s attorneys voluntarily handed over documents to the Justice Department marked “classified” when they were found in a closet at a think tank where Biden worked after his two terms as vice president. The attorneys later turned in more documents found at Biden’s home in Delaware.

Trump’s team, meanwhile, has not been cooperative. Trump repeatedly declined to identify or turn over secret government documents in his possession, prompting the FBI to execute a search warrant to reclaim the documents.

To what extent the two sets of classified documents are similar or different on the merits is hard to gauge, as neither Biden’s team nor Attorney General Merrick Garland has released details. Trump’s records, meanwhile, were unsealed by a federal search warrant last year, revealing that they included more than 180 documents bearing classification markings, at least 25 of which were marked “top secret.”

Garland said Thursday that his decision to have an independent lawyer review the Biden documents shows he’s not biased against one party.

“This appointment underscores for the public the department’s commitment to both independence and accountability in particularly sensitive matters, and to making decisions indisputably guided only by the facts and the law,” Garland said while announcing the appointment of Special Counsel Robert K. Hur.

To help put this dispute in perspective, Grid reached out to Bill Leonard, an expert on the subject of document classification. He served as the top federal official providing policy oversight of the government’s security classification system from 2002 to 2008 as the director of the National Archives and Records Administration’s (NARA) Information Security Oversight Office.

This interview has been edited for length and clarity.

Grid: We now have these two special counsels investigating what happened with former president Trump and President Biden regarding classified records. What are the main unanswered questions about these cases that you’re hoping will emerge as they go forward?

Bill Leonard: To me, the two key questions are the [men’s] intent in terms of how this happened, and then their reactions.

If this was just a reflection of careless habits that could happen in a secure environment, and classified becomes inadvertently intermingled and ends up being packed away with unclassified, there was no intent, that’s one thing.

If there was a recognition that yes, this was classified, yes, it was properly classified — but yet, it’s going to be removed anyhow, for whatever purpose — that, to me, would be the key in terms of what the intent was.

And then the second, of course, would be: What was the reaction after individuals became aware that a security violation has, in fact, occurred?

G: In your view, what are the major differences that you see between the Mar-a-Lago documents case and what we’re hearing this week about the classified records connected to President Biden?

BL: The major difference, as I see it, is the reaction of the principals when they became aware of [the breaches]. The reaction of the prior president is something I always had a very difficult time to understand. I could not understand that recalcitrance in terms of properly turning over to the National Archives material that should be, even after it was discovered.

It’s always the cover-up that gets people in trouble. And I think that’s the big difference here. The fact of classified [records] becoming intermingled with unclassified — not a newsflash. It’s not an uncommon occurrence in the entire federal government. Covering it up — that, to me is the big difference. And it’s the cover-up that always gets you in trouble.

G: What is your reaction to hearing that classified records appeared in a place like the Penn Biden Center, and, apparently, in President Biden’s personal residence?

BL: What’s clear in both cases is a breakdown in some sort of administrative procedures. Obviously, if you’re the president, or the vice president, you’re a busy person and you normally have people keeping track of these types of things for you; it’s not the utmost thing on your mind.

In the case of the former president, from what I’ve read, there was a total disregard. I knew the individual who was responsible for records management under Trump, and he was quite frustrated with, with how things were run in that particular White House.How was it in the Obama-Biden administration? I don’t know. Frankly, I’d be surprised if it was lackadaisical.

G: Is it your understanding, based on what we’ve heard about the process in the Biden case, that he and his lawyers took the correct action once they knew that some classified records had been discovered?

BL: That’s my understanding. But that, to me, would be the appropriate thing for a special counsel to focus in on. Was there or was there not an attempt to cover up? The fact that the violation occurred handling classified is not unusual. But if there was any attempt to cover it up, that’s quite frankly when you get into criminality.

G: Do you believe it would matter what the content of these records are? Do you expect that to be something the special counsel should be looking at?

BL: Clearly. Also, just by the passage of time, classified information often becomes less sensitive. Depending upon how old those Biden-Obama administration documents are, you’re going back 12 to 15 years.

G: Biden’s lawyers said they broadened their search for other classified records after the initial findings in the Penn Biden Center in November. Were they required to broaden their audit of his records?

BL: I believe that’s just exercising good judgment. There’s no requirement that I’m aware of, unless they, themselves, realize that there was a systemic failure — and then would have to be concerned with how extensive that systemic failure was. But again, it’s not unusual for classified information to get out of proper control.

G: How is the process of turning over classified records from the vice president or the president supposed to work at the end of an administration?

BL: It’s supposed to be a rather orderly process. There are people assigned, normally with a NARA background. The ideal situation is that this is not an end-of-the-term type of thing but that procedures are established from the get-go, which provides for an orderly transition of materials covered by the Presidential Records Act to NARA for eventual retention. It’s a combination of things in terms of just making certain that the records are subject to proper disposition and that those that are required for retention under the Presidential Records Act, are, in fact, eventually transferred to NARA and everything else is properly destroyed or returned to agencies as appropriate.

G: Are there any differences between the requirements for the president and the vice president with regard to handling of classified specified records?

BL: When I was in the position overseeing this for the executive branch, I had a big contretemps with Dick Cheney and his office when he was vice president. Cheney’s people claimed that, as vice president and having a constitutional role independent of the executive branch — specifically, being the president of the Senate — the vice president wasn’t subject to the executive order that the president established for proper information handling. So that led to some references to Cheney claiming that he was a quote-unquote, “fourth branch of government” — that he somehow hovers above, a bit above the other three branches. But they were quite serious in terms of claiming that Vice President Dick Cheney wasn’t subject to the rules and regulations that the rest of the executive branch was.

I was rather clear that when the vice president and members of his office were accessing national security information, that was not in the context of the vice president’s role as president of the Senate but as a member of the executive branch. And I also pointed out that there were parts of the executive order with references to the Office of the Vice President. And so, in my mind, if you found it necessary to reference the Office of the Vice President in the executive order that meant that executive order applied to the vice president. When I challenged [Cheney’s then-Chief of Staff] David Addington on this, he refused to engage with me. So I wrote to the attorney general to ask for an official interpretation. In response to that, Addington attempted to abolish my office.

At the end of the day, I never got a response from the Justice Department. And quite frankly, it’s one of those things that led me to decide to retire from the federal government. I said, you know, if I basically came to the conclusion that, being responsible to oversee the implementation of the president’s executive order within the executive branch, if I could not rely on a plain text reading of what that executive order said, I couldn’t do my job. It’s as simple as that. So that led to my eventual decision that same year to just retire from the federal government. I didn’t see how I do my job.

As far as I’m concerned, that question has never been officially answered as to whether or not the executive order as written governing the handling of classified information applies to the vice president. There was a claim by my vice president’s office that it didn’t. And to my knowledge, no subsequent vice president — neither Biden nor Pence, nor [Kamala] Harris now, have made similar claims.

The Cheney precedent has never been officially addressed, in terms of whether the executive order pertains to the vice president. It’s an issue that seems to have been big back then and just kind of disappeared, so it’s just a little sidenote that strikes me.