Handling Classified Documents 101

How Joe Biden’s classified material should have been handled at the end of the Obama administration: A Dispatch Explainer.

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A binder containing classified material marked Secret sits on the witness table during a Senate hearing. (Photo by Samuel Corum/Anadolu Agency/Getty Images)

The Justice Department is investigating what went wrong in the handling of three tranches of Obama-era classified documents recently found in President Joe Biden’s Delaware home and an affiliated think tank.

Special counsel Robert Hur hopes to learn whether Biden or his staff broke any laws connected with the discovery, transport, or turnover of classified documents. The process shouldn’t be complicated, as federal law and well-established protocols already dictate what’s supposed to happen with classified documents at the end of an administration.

Who can handle classified documents?

The Presidential Records Act of 1978 dictates that all presidential and vice presidential records—classified and unclassified—be turned over to the National Archives at the end of an administration. That usually falls to aides of the outgoing presidential administration who have appropriate security clearances, according to National Security Institute Founder and Executive Director Jamil Jaffer.

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  1. Mkliegman

    Stepping away from "handling classified materials" per se, would you please remind readers what the rules are for a President on the one hand, or Vice-President on the other, as to permissibility of his removing upon leaving office documents and files that were created in the course of his service in that role? (My recollection from Mar-a-Lago raid discussions was that this was all supposed to go to National Archives, wrong?). And is there some kind of exception for Presidential libraries and Penn Biden Centers?

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    Ben Connelly

    It might be helpful to add something about controlled unclassified information to this explainer.

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  3. Joe1776

    Why was Biden having his personal lawyers, as opposed to professional movers moving these boxes? And why were they reading through the contents? Biden claims he had no idea these documents would be found.

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  4. Randall Briggs

    Could we please stop using the word "tranche" when we mean "some stuff of which we are discussing"?

    It doesn't mean "set," "packet," "batch," "folder," or "package." It means "a division or portion of a pool or whole; specifically : an issue of bonds." Unless all of the classified documents found at Biden's old residence were part of the same overall work, study, or report, then the parcels that have been found are not tranches.

    A year ago, 99% of educated Americans did not know what "tranche" means, nor had they ever used it. With our first shipment of supplies to Ukraine, it suddenly became the word of the day, week, and year. But, still, hardly anyone knows what it means. Please, stop using it to substitute for perfectly good words that most people understand!

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    1. Paulkempf

      Yes, I'm surprised to see it used apart from investments in debt instruments like collateralized mortgage obligations (CMOs), where participations are sold in tranches according to risk, dates of maturity, etc. I'm trying to imagine how it could be used properly in other contexts--seafood sold at wholesale fish markets? A tranche of red snapper, perhaps?

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      1. Randall Briggs

        Since you mentioned food, I suppose we could call breakfast the 1st tranche, lunch the 2nd tranche, and dinner the 3rd tranche.

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    Rlritt

    "As soon as you realize that [secret docs were in an secure locstion] though, you have an obligation to immediately notify your security officer,” Jaffer said. “They’ll describe to you what action to take to protect the classified materials and secure them properly. "

    "White House lawyers discovered the first tranche of classified documents in the Penn Biden Center on November 2, according to Biden’s personal attorney, who said the president’s legal team notified the National Archives of the documents’ existence the same day"

    Isn't that what Biden's representatives did?

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    1. DTruitt

      Pretty sure that these documents that ended up in Biden's garage were not the incompetent work of failed aides who suddenly "discovered" their unauthorized handling, but of Biden himself taking home stuff he never had any business keeping in his personal possession.

      It is also pretty safe to say that Biden or his aides "discovered" these materials after seeing what a mess Trump created with his personal stash of classified records. The problem for Biden is he spent a couple months yakking on and on about how horrible it was that Trump mishandled his docs, without apparently either being aware he did the same thing, or else he knew he did it and merely hoped nobody would notice ... until at some later point one of his attorneys advised him he'd better come clean - AFTER the election, of course, which is what applied so much stink to Biden's actions.

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        Rlritt

        But the set of documents found in his former office were discovered because they were emptying the office and closing it. So it wasn't because they knew documents were there. Apparently it was a surprise to everyone and the Lawyers immediately returned the documents. As they should. In an effort to comply with the law. Biden told his lawyers to see if any other documents were not returned and so search his premises. They were very proactive. When they found the 10 documents in the office they could have overlooked them. It didn't seem as if anyone was missing them.

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        1. Joe1776

          When you move do you hire lawyers to do the moving? Which law firm advertises moving services on its website? And even if we assume Biden has so much cash he might as well hire lawyers to move boxes why are they combing through the files instead of just loading them on a truck?

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            Rlritt

            You would hire them to go through papers and documents before you have the movers come in and remove file cabinets and desks.

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  6. rickle

    Relying on an individuals compliance to security requirements is clearly insufficient to guarantee tight control of classified documents.

    Why isn’t there an indexed log somewhere to insure that all copies of the documents are returned to the archives after use?

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      Rlritt

      Probably is one, but no one checks it on a regular basis.

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      1. Deleted Comment

        This comment has been deleted

      2. Slaffey

        It’s my understanding that there if no such log.

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          Rlritt

          Looks like we found the problem

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      Magpie

      The documents in question hadn't yet been transferred to the archives, as far as I can tell.

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        Rlritt

        The National Archives were notified and it's their responsibility to pick them and transfer them safely.

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          Magpie

          For sure. But they weren't notified until recently. Rick asked why the documents hadn't been returned to the Archives after use, and I was just pointing out that the Archives didn't have them in the first place.

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    Paul Montagu

    Regarding "intent", finding records in three separate locations suggests that it was more willful (and criminal) than accidental, but we'll see what Hur uncovers. The Espionage Act also addresses "gross negligence", which is also criminal, and they were two words that Comey avoided after the Hillary investigation, choosing "extreme carelessness" instead, which carries no legal weight.
    Trump basically has no excuse. He willfully retained materials relating to the national defense, a crime under 18 USC 793, and obstructed their return, also a crime. If Jack Smith and Garland have any intellectual consistency, Trump needs to be indicted.

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    1. DTruitt

      Actually, Trump most certainly DOES have an excuse ... or as I should say, a lack of any intent. He says he believed the records were his personal property, and that he declassified them anyway. Believe that or not, that is his story and his mindset, and a prosecutor is going to have a very difficult job proving that Trump's mindset was willful theft of the government's property.

      Presidents and members of their administrations routinely get into disputes with other government people including DOJ about legalisms, and of course, the proper course of action if an agreement cannot be reached, to file suit and let a judge and jury sort it all out. Biden's DOJ failed to do that, and simply went straight to a criminal investigation which presumed intent to commit a felony. And of course with Biden, DOJ never got involved at all, which was awfully convenient for Biden.

      That is where the double standard comes in. One set of rules and assumptions for former President A, and an entirely different set of rules and assumptions for former Vice President B.

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        Paul Montagu

        One, as they say, ignorance of the law is no defense, and neither are Trump's delusional beliefs. The fact is that Trump consciously and deliberately kept national defense materials at his country club, taking it as far as flouting a subpoena and dispatching his lawyer to lie to the DOJ in a face-to-face meeting. Such behavior signals both intent and obstruction, IMO.
        Two, Trump's authority while president to declassify documents is irrelevant. The Espionage Act doesn't use the word "classified" or "declassified", but it does use phrases like "materials relating to the national defense", and the documents with the "classified" marking easily fell under that "national defense" category (most likely). Also, there are documents that a president has no power to declassify because they're protected by statute, such as nuclear secrets and intel on spies.
        Three, there didn't have to be any kind of negotiation. Except for his passports and perhaps some other personal doodads, the contents of those dozens of boxes are presidential records and are thus owned by the US government, so they're not his personal property, per the Presidential Records Act, no matter how much Trump has screamed otherwise.
        Four, I don't know what double standard you're talking about. The 11th Circuit and even Trump's pet judge, Cannon, agreed that the search warrant was properly executed. It had been 18 months, and Trump was still holding onto records that didn't belong to him, and the classified records that were mixed into the first batch added to the sense of urgency for their return.
        Five, there are enough questions about Biden that should draw suspicions from an investigator, such as (1) why did Biden send a lawyer to Penn Biden Center to clear out his office and not some GSA flunkies, and (2) how is it "accidental" that Biden left classified materials in three separate locations, and (3) Biden's whole communications apparatus have been less than forthcoming, as if they're hiding something, and I think they are. I hope Hur does a good diligent job.

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          Rlritt

          His lawyer was sent to collect all files and documents. He wasn't there to move furniture. A flunky know what documents were important. Luckily it was a lawyer because they new to report the documents to the Nat. Archive. Again, the processes of returning documents does not require they talk to the press.

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    2. Slaffey

      Interesting in that I think finding them in three places makes it less likely that it was willful. If I knew I took documents and knew it was wrong, I would put them somewhere that would not be easy to find. Almost certainly in a safe.

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  8. Echack

    A quick correction. SCI is not the "highest" level of classification, Top Secret is. There is SCI that is labeled Secret and it is possible but unlikely to be marked Confidential. There are also additional "add on" classifications for cryptography systems and nuclear weapons. An SCI document might have headers "Top Secret/ProgramCodeword" or "Secret/ProgramCodeword" based on the level of the document. You also see the codeword "NOFORN", meaning no foreign nationals can see this.

    I worked in a SCIF for a few years at a previous employer and got briefed on this annually, as others have said. I had the bad luck to have to escort an uncleared contractor into our facility for several days. I had to carry a box that had a very, very loud beeper that beeped every other second and went with that person everywhere in the facility. When she had to use the restroom, a female staff member went with us, went into the restroom to be sure it was clear, and escorted the contractor in. I stood at the door with the beeper.

    As an aside, there is another government document designation called "SBU", Sensitive But Unclassified. That is used for data such as contracting data, proposals, company proprietary data, etc. It doesn't require much other than to be kept in a file cabinet when not being used and not emailing it over the internet.

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    1. Jaybrown

      Nuclear weapon classification is not an "add-on," but an entirely separate classification category comprising Restricted Data and Formerly Restricted Data (weird name but it all makes sense). Unlike all other classification, which is authorized and defined by Executive Order (the current one is Obama's EO 13526), RD/FRD is authorized and defined by statute, the Atomic Energy Act of 1954, as amended (42 U.S.C. §§ 2011 et. seq.).

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    Blake Fischer

    I think what bothers me more about Biden’s is that I know Trump is an idiot and was brand new to government in 2017. It doesn’t excuse the behavior but possibly explains it, at least. For Biden to claim he takes classified materials “very seriously” and we find classified documents in at least 3 locations they shouldn’t be clearly indicates he doesn’t. It’s not a mistake, it’s a pattern and to me indicates a “rules for thee but not for me” attitude. And he’s been doing this for decades?!

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      Rlritt

      It doesn't surprise me. An executive at his level is not tasked with packing up materials and returning them. There are people with the right clearance to do it for him. I really doubt it even occurred to him that documents wouldn't be immediately returned. Ultimately he is responsible for his staff, but I'm sure it did not occur to him that it wasn't being done properly.

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        Devin H

        They can’t pack it up if it’s not in its designated container and they wouldn’t be looking for it. You’re much too eager to take any blame from Biden here.

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          Rlritt

          Yes, because what would be his reasoning? He hid them for a few years because why? He didn't need them. When they were found he reasonably wanted them to be returned. As President he could have brought them to the White House and then called the National Archives and told them to pick them up. As President he is allowed to have them. As vice president he is allowed to have them. He could have received them as VP kept them in a legally secure and taken them out as President. He didn't do that. Instead he was honest about where they were found and urged his lawyers to find out if there were more. As President, he did not have to do that.

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      2. Slaffey

        Agree with this. He didn’t pack the boxes, didn’t move the boxes, and likely had no idea what was in them

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    Mike Shigley

    Audrey: A new question: Why on earth were these documents sent to the National Archives? In my limited experience (thank goodness) with classified documents they were associated with a position in the office, not a specific person by name. That is, the documents that Biden and Trump had "belonged" to the Office of the President, not to Biden and Trump personally.

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      Magpie

      You mean why weren't they sent to the National Archives? The documents in question were supposed to be transferred to the Archives years ago, but they weren't until they were discovered over the last few weeks.

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        Mike Shigley

        I am sorry if my comment wasn't clear. I asked why they were to be sent to the National Archives. In my experience such documents were not personal to a person but to an office/position.

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          Rlritt

          I agree, that the National Archives should have more responsibility on making sure that documents given to the President and the VP are returned.

          In the case of Trump, they did ask the documents to be returned and they weren't. Nat. Archives had to get a court order and eventually have te FBI institute a search warrant because Trump thought they were his to keep.

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          Magpie

          The National Archives is the official repository for records of the federal government. So the documents in question should have been transferred to the Archives, either at the end of the Obama administration or at a later date when they were no longer in active use by government officials.

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            Mike Shigley

            Fair statement, but at least the documents that I had access to did not necessarily have an ending date.

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        3. Nordic_man

          Docs are assigned to a person somewhere. And you don’t want it to be you

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