Both US President Joe Biden and his predecessor Donald Trump have recently found themselves at the center of controversies regarding the use of confidential documents (or “classified”, as they often say in Italy using an English calque). Both, albeit under very different circumstances, kept documents containing classified information after leaving their previous government posts: Joe Biden as vice president under Barack Obama and Trump as president.
The situations of the two are quite different, and judging by the information available, Biden’s position seems much less serious. However, both are united by an improper use of confidential documents.
In the American system, confidential documents are those that contain (even only in a portion of a document) information that could damage or endanger the national security of the United States. However, the definition is extremely broad, and does not only cover information on war plans, nuclear weapons or secret scientific programs, but also much more trivial and mundane information and activities, such as diplomatic communications. Because of this, it is estimated that each administration produces tens of millions of pages of confidential documents each year (even considering that just one sentence in a document is considered “confidential” to classify the entire document as confidential).
In the American system there are three levels of secrecy: confidential, secret and “top secret”. The confidentiality level is the lowest and concerns information that could harm the security of the United States; the secret level concerns information that could “seriously” damage security; while the “top secret” level concerns information that could cause “exceptionally serious” damage. Secrecy classifications are usually set by people with special authority within the entity that produces the document (for example, the US government, a government agency, an embassy, and so on).
It is quite common, however, that within the same confidential document there are sentences with different classifications: the title of the document could be judged to be in the public domain and therefore will be preceded by the letter “U”, which stands for non-confidential (unclassified). But within the document, the various paragraphs could be marked with “C” (confidential), “S” (secret), “TS” (“top secret”). The general classification of the document depends on the most confidential information it contains: if even just one paragraph of a document is TS, the whole document is “top secret”.
In order to access and read confidential documents, you must have a security clearance. Again, these types of authorizations are relatively common, because you need to be authorized not only to handle confidential documents, but also to be able to be present when confidential information is discussed in a meeting or in another context. Hundreds of thousands of people in the United States are estimated to have some type of security clearance (other higher estimates put it at over a million).
The permissions depend on the classification system: those with a confidential permission level will be able to read confidential documents and so on. This does not mean – especially at the highest levels of secrecy – that anyone with “top secret” level authorization can access all “top secret” documents. There are various other security and confidentiality systems, which among other things allow some information and documents to be divided into “compartments” which can only be accessed by those with specific authorizations. Accessing the most sensitive information about nuclear weapons, for example, requires clearances that go far beyond a standard “top secret” clearance.
The only person who can have access to all information and documents regardless of their degree of confidentiality is the current president.
Documents can be “declassified”, i.e. their secrecy can be removed. Bill Clinton’s administration in the 1990s decided that all confidential documents should be declassified 25 years after their production, unless they contained information still deemed sensitive. The president then has full authority to declassify any document (there are only a few exceptions regarding, again, the nuclear program).
US government agencies are then required to conduct document review programs and declassify those deemed no longer sensitive. Citizens can also request that certain information be declassified, and the government is obligated to review these requests and comply with them, unless of course they pose a danger to national security.
The problem with Trump and Biden
Both Trump and Biden are accused of having kept confidential documents after leaving office (for Biden we are talking about when he was vice president, until 2017). According to the Presidential Records Act, a law that dates back to the 1970s, presidents must deliver all documents produced by their administration (even non-confidential ones) to the National Archives and Records Administration, an agency of the United States government in charge of preserving most important government and historical documents of the country.
But since there are so many documents produced, it is easy for errors or distractions to occur, and for some to end up where they shouldn’t. Larry Pfeiffer, a former US intelligence executive, told the Associated Press that several times when he worked at the CIA, confidential documents were discovered to have been misplaced, or taken away by mistake. In these cases, when the documents are found, the authorities are notified and then they are recovered. These kinds of good faith mistakes are usually handled as an administrative matter, with no particular punishment or investigation.
It appears that this is the case with Joe Biden. So far, judging by public information, few documents have been found in two places: a closet in an office of the Biden study center that was being emptied and the garage of Biden’s private home. Both of these places would suggest (but there are no certainties at the moment) that those confidential documents were taken away from government offices by mistake. And immediately after the discovery, the Justice Department and other relevant authorities were notified.
Donald Trump’s situation, on the other hand, is more complex. The confidential documents found in Trump’s house in Mar-a-Lago, Florida, are numerous (more than a hundred), and above all the former president has resisted a lot and tried in every way to avoid returning them. His lawyers initially lied about the actual amount of documents Trump had taken, and for months the former president refused to return them, forcing the FBI to conduct a search of his home.
However, given that the handling of confidential documents by Biden and Trump has become a matter of tough political confrontation, the Justice Department has decided to appoint an independent special prosecutor for both to evaluate the documents and the case.
