On August 3, 2017, I posted an essay on this site in which I was critical of former Secretary of State Hillary Clinton and President Donald Trump for their handling of classified information. Unfortunately, the current uproar over documents retained by the outgoing president raises the issue anew.
Critics of the actions of the Department of Justice in its applying for and executing a search warrant for the former president’s home at Mar-a-Lago have complained about almost every aspect of the activity. Mr. Trump and his allies have asked why DOJ didn’t just ask for the documents in question. Reports indicate that DOJ communicated at length with Mr. Trump’s attorneys about documents taken to Mar-a-Lago, and, at one point, they were assured by one attorney that no classified material remained at that site. They also issued a subpoena for the documents which they sought and did not receive them.
While the affidavit in support of the request for a search warrant remains sealed, one can offer a reasoned hypothesis in explaining such an unusual action. My hypothesis is based on the fact that highly sensitive, classified documents are controlled at the individual level. That is, each original document and all copies bear a unique identifier. A record is maintained which reflects the holder of each copy. A transmittal form accompanies each document as it moves from one holder to another. In reviewing the documents transferred to their care upon the departure of the Trump administration, the National Archives and Records Administration would have had a list of such classified documents that had been sent to the White House. They would have found it easy to determine that the documents that they received did not include one or more such sensitive documents. Such a finding would have generated a request to the Trump staff to explain the absence of these documents. If the documents still were not located, they would have reported the matter to DOJ. Is this what happened? I don’t know for sure, but I will bet that it is at least a partial explanation for the DOJ suspicions.
The next issue deals with the conditions under which the documents received under the warrant had been stored. We have been told that the staff at Mar-a-Lago were told that the safety provided was inadequate and that the staff then added extra locks to the storage area. Since at least one of the documents has been reported as bearing a TS/SCI marking, that is entirely inadequate. Documents bearing that classification must be stored in a Sensitive Compartmented Information Facility (SCIF). Such facilities require extensive physical security measures which extend well beyond adding another lock to the door. What is more, we are reliably informed that President Trump routinely removed such documents from the secured area to the residential wing of the White House. That further underlines the suspicion that document security was not a high priority during his tenure as president and after it as well.
At one point in my life, I held the position as Classified Documents Custodian for a military organization. I considered it be a stressful assignment. Fortunately, my role did not include responsibility for a SCIF. Anyone who has a security clearance should be aware of the seriousness of document control. The possibility that documents marked TS/SCI are moving around uncontrolled and unsecured should send a chill through all of us.
During the response to the execution of the warrant, some suggested that any classified documents revealed in the inventory had been planted by the FBI. This would have required that DOJ and the original classification authority have the same casual approach to document security that the staff at Mar-a-Lago displayed. It is quite a stretch to believe that officials in DOJ could obtain a copy of a TS/SCI document and transmit it to field agents in Florida for this purpose without explaining why they needed the document. Many in this chain are unlikely to possess the requisite security clearance to handle such a document.
Another response to these revelations has been that all of the documents in question had been declassified by President Trump. The President does have ultimate classification/declassification authority in most, but not all, cases. However, the description by one of his supporters of the way in which that authority was exercised by Mr. Trump is totally outside the rules of the game. He is alleged to have declared that all classified material moved to his residential area was automatically declassified.
The usual procedure for presidential declassification insures that the originator and all holders of the subject document are aware of his decision. A notice of intent to declassify is sent to the originator. This gives that agency an opportunity to object. It also enables them to notify all holders of the document of the pending action. Once this has happened and the decision is final, the document and all copies are marked as declassified with a date and an authority. The absence of such declassification markings on the documents in question suggests that they are still classified.
The interesting approach to President Trump’s classification authority by the White House staff is illustrated by the attempt to move a transcript of a telephone call with a foreign leader into the Compartmented Intelligence category in order to better restrict its circulation. No attempt to follow classification regulations was discernible. It was just a case of, “We don’t want people to see this.”
Then we come to the “What about?” response. Essentially, this says, “I may have sinned, but these guys are greater sinners.” If one examines presidential transitions that have followed the enactment of the Presidential Records Act in 1978, it is hard to find more than one sinner. Presidents of both parties have carefully followed the provisions of the act. Everything from the White House went to NARA. NARA separated classified from unclassified material and reviewed requests for release of material to be housed in presidential libraries. President Trump did not follow this procedure.
In summary, the Department of Justice followed normal procedures. President Trump did not. It remains to be seen how responsibility for any violations of law will be determined. I can only observe that, when I possessed a security clearance and was responsible for handling classified documents, I knew that there would be consequences if I failed to perform my duties in accordance with the law.