Classified Documents Scandals Point to Larger Culture of Impunity

The snowballing investigations into Trump, Biden, Pence, and others over their mishandling of classified documents present us with a unique opportunity.

Jeremy Scahill

January 27 2023, 8:45 a.m.

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Photo: Olivier Douliery/AFP via Getty Images

We do not yet know if any of the cases involving former presidents and vice presidents improperly retaining classified documents are as incendiary as some partisan commentators would have us believe. The dominant view projected by the liberal media is that Joe Biden and Mike Pence are benign, accidental document hoarders and that Donald Trump is a criminal who absconded with vital national secrets that could destroy the republic as we know it. Pro-Trump outlets have generally run with the narrative that the former president had every right to take the documents because he had magically declassified them in his mind, but Biden took the documents to engage in acts of corruption, including sharing them with his wayward son Hunter. The broader right-wing position is effectively to downplay or ignore Trump’s document situation unless it is convenient for hammering on Biden, and to portray the Biden document case as a breathtaking scandal that portends dark secrets that must be exposed.

We do not have enough information yet to determine if there were malicious motives at play in any of these cases, nor do we know if any actual harm was done. There is no denying, however, that Trump’s situation is different from the Pence and Biden affairs — because of Trump’s scuttling of the investigation (potentially in a criminal manner), his resistance to returning documents, and the sheer volume of documents he took. There may well be a finding that some or all of these officials violated regulations or laws governing the handling of classified or national defense materials. In the end, what will really matter is the precise nature of the documents they improperly retained. In Trump’s case, his actions after he took the documents may prove more problematic for him and his team legally than the act of improperly retaining the materials.

For good reasons, this story is receiving widespread coverage and will be the focus not only of the special counsel probes, but also congressional investigations. The Republicans, wielding their majority in the House, will certainly zero in on the Biden document case. He is, after all, the sitting president, and lawmakers are right to investigate. However, if the House Republicans elect to ignore Trump’s actions or minimize their importance while simultaneously running an aggressive examination of Biden’s conduct, that will severely undermine the credibility of the process. Unfortunately, that seems to be a likely scenario.

“No one’s been investigated more than Donald Trump. Who hasn’t been investigated? Joe Biden, and that’s why we’re finally launching an investigation of Joe Biden,” said Rep. James Comer, the chair of the House Oversight Committee. “I don’t feel like we need to spend a whole lot of time investigating President Trump because the Democrats have done that for the past six years.” Comer and other Republicans, however, have indicated they intend to question the government on what they allege was a politically motivated raid of Trump’s Florida resort home last August. “My concern is how there’s such a discrepancy in how former President Trump was treated by raiding Mar-a-Lago, by getting the security cameras, by taking pictures of documents on the floor,” he said.

In recent weeks, Comer has fired off a slew of letters demanding information about the documents as well as details about how they were discovered, who had access to them, and the communications between the Justice Department and Biden’s team. He has also asked the White House and the Secret Service for visitor’s logs for Biden’s home in Delaware. “President Biden’s mishandling of classified materials raises the issue of whether he has jeopardized our national security,” Comer wrote in a letter to chief of staff Ron Klain. “Without a list of individuals who have visited his residence, the American people will never know who had access to these highly sensitive documents.” In another letter to the University of Pennsylvania, Comer also requested a detailed list of everyone, including members of the Biden family, who may have had access to the Penn Biden Center, where the initial batch of documents was discovered.

Rep. Jim Jordan, the Republican chair of the Judiciary Committee, has also announced an investigation into Biden’s documents with an initial focus on Attorney General Merrick Garland’s decision to appoint a special counsel and the communications between Biden’s lawyers and the Justice Department about the discoveries of classified materials. “It is unclear when the Department first came to learn about the existence of these documents, and whether it actively concealed this information from the public on the eve of the 2022 elections,” Jordan wrote in a January 13 letter to Garland.

Biden and his lawyers have been emphatic in asserting that they followed proper protocol once they discovered classified papers at the Penn Biden Center. The administration has blasted House Speaker Kevin McCarthy for putting “extreme MAGA members,” such as Reps. Marjorie Taylor Greene and Paul Gosar, on oversight committees, charging among other things that they have promoted “dangerous conspiracy theories.”

Some leading Democrats, including Illinois Sen. Dick Durbin, have openly criticized Biden over the documents case, while Majority Leader Chuck Schumer said he would support bipartisan legislation spearheaded by Michigan Democrat Sen. Gary Peters aimed at preserving presidential and other federal records. Rep. Ritchie Torres, a New York Democrat, said he will introduce legislation that would require “federal officials, within 30 days of leaving office, to certify under oath that they possess no classified documents.” Most Democrats, when asked about Biden’s actions, defer to the special counsel probes, while pointing to the differences between the Biden and Trump situations. Many of those same people over the past year have shown no hesitation to blast Trump and portray his taking of classified documents as a nondebatable threat to national security despite the limited amount of concrete information made public about the specific nature of the materials in question. After Connecticut Democrat Rep. Jim Himes remarked that Biden “has apparently done what Trump did in retaining classified documents,” the New York Times reported, “His response irked some Democrats on the Hill, who said they want to maintain a consistent message that the special prosecutors should be able to conduct their investigations without being influenced by politics.”

While the investigations in the House of Representatives appear to be narrowly aimed at Biden’s conduct, there are some indications of bipartisan efforts brewing in the Senate. Sen. Mark Warner, the chair of the Senate Intelligence Committee, has expressed frustration that lawmakers never received a briefing on the Trump documents case and has called for one dealing with both the Biden and Trump matters. Warner, a Democrat from Virginia, said that there was unanimous support among both Democrats and Republicans on the Intelligence Committee in demanding a full briefing on the documents recovered from both Trump and Biden. “We don’t want to get into a question of threats at this point,” Warner said after a closed-door briefing from the Director of National Intelligence Avril Haines on January 25. Senators said that Haines told the committee that they would not receive a briefing while the special counsel investigations are ongoing. “We have a job to do. It is our job to make sure that the security of our country is protected and that the intelligence that our country depends upon is not compromised,” Warner said. “The notion that we have to wait until a special prosecutor blesses the Intelligence Committee’s oversight will not stand.” Arkansas Republican Sen. Tom Cotton has threatened to block Biden’s nominees “for any department or agency and take every step I can on every committee on which I serve, to impose consequences on the administration until they provide these documents for Congress to make our own informed judgment about the risk to national security.”

Jeremy Scahill discusses the mistreatment of whistleblowers and Washington’s culture of secrecy on Democracy Now!, Jan. 24, 2023.

It would be indefensible for the Biden administration to stonewall a bipartisan effort from the Democrat-led Senate Intelligence Committee to conduct a classified investigation of these matters. It is worth remembering that in 1976, then-Sen. Biden was a co-sponsor of the legislation that established the permanent intelligence committees, following the widespread abuses committed during the Nixon administration. Biden was an original member of the Senate Intelligence Committee and criticized various administrations for failing to comply with its oversight mandates.

Even if such briefings on the Biden and Trump documents happen, the public would be kept largely in the dark, save for some inevitable leaks to the media, for the foreseeable future. As the Justice Department investigations unfold, one of the most valuable public responses from Congress would be to convene a thorough, independent, bipartisan investigation of the entire bureaucracy of secrecy that exists throughout the federal government. It should interrogate the pervasive practice of overclassification, the uneven legal treatment — depending on their status or positions of power — of individuals who mishandle classified materials, as well as the abuse of the Espionage Act by both Democratic and Republican administrations to target whistleblowers and journalistic sources.

There is another aspect to these scandals that we should not lose sight of: the general climate of impunity that exists among the powerful when it comes to secrecy and abuse of power. Under President George W. Bush and Vice President Dick Cheney, the U.S. was operating a global kidnap and torture regime after 9/11. Senior CIA personnel destroyed videotapes of their torture of detainees. The CIA, under John Brennan, spied on U.S. Senate investigators and hacked into their computer systems. In the lead up to the 2003 Iraq invasion, Cheney and other officials abused the system of classified intelligence, cherry-picking unverified data to fabricate a justification for war. James Clapper, the former director of national intelligence under Barack Obama, perjured himself in front of the U.S. Senate when he lied about the National Security Agency’s bulk collection of the communications of Americans. Modern U.S. history is rife with such malignant actions on the part of senior officials. No one has ever faced any real consequences for these abuses of power — and in fact, many people involved, such as Gina Haspel, who served as CIA director under Trump, continued to be promoted in government or received lucrative deals in the private sector.

It is a disservice to the public to exploit the Trump, Biden, and Pence cases for solely partisan purposes. Each case should be investigated on its merits and the public informed of the extent of the misconduct. At the same time, this moment should serve as an opportunity to launch a serious and wide-ranging investigation into the broader culture of secrecy in Washington, D.C., that leads to such cases.

But the investigation shouldn’t stop there. Any meaningful inquiry must include an accounting of a wider range of abuses, including the secret torture program, and must develop a system of meaningful consequences for the perpetrators regardless of their prominence or the powerful positions they hold.

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