Depending on their politics, Americans are watching with frustration, anger, schadenfreude, or all of the above, as information emerges regarding classified documents found in President Joe Biden’s private home and former office. Was he as indifferent to the need to protect classified information as his predecessor? Does his cooperation with the authorities so contrast with his predecessor’s obstruction that the two men’s cases are truly apples-and-oranges different? Can Trump now plausibly be punished without some official action against Biden (e.g., an impeachment effort, be it ever so futile)?
These issues will be sorted out.
Questions of political theatre and the fair administration of justice aside, however, there are lessons to be learned — and steps that can wisely be taken — without regard to the classified-information challenges currently facing the 45th and 46th presidents.
First, a few basic facts need to be acknowledged. As has been apparent for years, too many documents are classified — and retain their classification long after it is necessary. I can attest to that from my own long-ago experience when I was on active duty in the Coast Guard. One day in 1971 or 1972, a question arose whether the service might declassify records relating to law enforcement during … wait for it … Prohibition. I think the decision was to keep them under wraps.
Second, civilian and military personnel with clearances, as well as civilian contractors, are overwhelmingly fastidious in their compliance with the complex web of restrictions that seek to ensure the protection of classified information. When they let their guard down, and of course that does happen, they face administrative sanctions that can threaten or end their careers. Every lawyer who has represented federal personnel with clearances can tell a story about the havoc that can follow a momentary lapse.
Third, notwithstanding the overall high level of compliance with the pervasive regulatory scheme and potential sanctions, classified information continues to find its way to the homes, attics, personal offices, storage units, and briefcases of authorized holders as well as those who lack clearances. I would be surprised if Messrs. Trump and Biden did not have plenty of company, including other former presidents and vice presidents, senators, members of Congress, cabinet and subcabinet officials, White House and congressional staffers, and military personnel. Some may be quirky pack rats, some may be thinking they may write their memoirs someday, and some may be just plain disorganized or concentrating on their post-government employment.
It would be futile to suggest that the political parties declare a classified-information armistice and let bygones be bygones so the nation can be spared the distraction, expense, and mutually-assured-destruction of parallel investigations. Even so, something constructive can still be done. In a nutshell: an amnesty for improperly-retained classified documents.
Such an amnesty has some rough analogies. For example, Treasury maintains a “conscience fund” to which delinquent taxpayers may make anonymous payments. Another is the “amnesty box” into which people might put contraband such as illegal drugs or weapons that might otherwise be discovered by TSA at airports or by security staff at large public events such as rallies, sports, or musical events.
A classified information amnesty box program could use a single Postal Service mailbox to which holders could simply mail whatever they had squirreled away, with instructions for using double envelopes. No return address or postage would be required if the word “Amnesty” was written where the stamps should be. Notice of the program, with a firm deadline (three or six months, perhaps), could be provided through the news media and the Federal Register. After the deadline, all bets would be off if and when classified information pack rats or malefactors are discovered.
An amnesty box for improperly retained classified documents won’t deter negligence (that’s impossible) or future malefactors, but it would at least get those documents back in government hands, thereby limiting potential future damage to national security. An amnesty box isn’t a perfect fix. It wouldn’t help unmask the pack rats, and it would be a challenge to determine whether national security has in fact been harmed by their actions. But it would be a start.
Eugene R. Fidell is an adjunct professor of law at New York University and a senior research scholar at Yale Law School. He is of counsel at the Washington, D.C., law firm Feldesman Tucker Leifer Fidell LLP.