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--:-- Sean Rameswaram: Welcome to Today Explained. I'm Sean Rameswaram.
--:-- Noel King: And I'm Noel King.
--:-- Sean Rameswaram: New year, old news. Last year, we found out the former president had a bunch of classified documents stashed at his Florida palace. This year is only a few weeks old, and now we're finding out the current president has left a trail of classified documents strewn about the eastern seaboard of the United States.
--:-- Noel King: First, it was his hardly used office at the Penn Biden Center in Washington, D.C. Then it was his garage in Delaware next to his Corvette. No joke.
--:-- Sean Rameswaram: On Today Explained, we're going to find out what the heck's going on with these old dudes and their classified documents and whether there's some opportunity here to stop classified documents from walking out of the White House.
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--:-- Noel King: This is very Sean. This is very Sean-coated. Gucci loafers.
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--:-- Sean Rameswaram: Today Explained here with Andrew Prokop from Vox. Happy New Year, Andrew.
--:-- Andrew Prokop: Well, there's been a bit of an unpleasant story for President Joe Biden dominating the news this week. The story broke on Monday. The next day, Biden started explaining.
--:-- Sean Rameswaram: They found some documents in a box, you know, a locked cabinet or at least a closet. And as soon as they did, they realized there were several classified documents in that box. And now the Justice Department is looking into whether any laws may have been violated with regards to those documents.
--:-- Andrew Prokop: What kind of documents are they, Andrew? Do we know what these documents say?
--:-- Sean Rameswaram: What we know is still quite vague. CNN reported that in his office at the Penn Biden Center in Washington, D.C., there were less than 12 classified documents.
--:-- Andrew Prokop: Now, they say they uncovered fewer than a dozen classified documents at the office, but it's unclear what they pertain to or why they were in this office. And that is pretty much all we know about what they are at this point.
--:-- Sean Rameswaram: And the ones in his garage in Delaware? We don't know anything about those.
--:-- Andrew Prokop: Do these locations where these documents were found, Andrew, tell us anything about what may have transpired here?
--:-- Sean Rameswaram: One, almost an honorary office the president had, and the other, his garage in Delaware. One sounds like it could be almost nefarious and the other sounds a little banal, but who knows?
--:-- Andrew Prokop: So the explanation that's being put out on background by the Biden team is basically that at the end of his vice presidency, as he was preparing to vacate the office, There's always a frenzied effort to pack up certain documents and that that this may have just been a mix up from AIDS packing documents.
--:-- Sean Rameswaram: They were put in boxes, sent various places. Some got sent to the office. He had soon got set up with UPenn. Some got sent to his house. But that like there was no plotting here or anything like that, that it was just just all a mistake.
--:-- Andrew Prokop: And Biden himself had said publicly that he was surprised to learn that those documents were there and that he has no idea what they are.
--:-- Sean Rameswaram: I was briefed about this discovery and surprised to learn that there were any government records that were taken there to that office. But I don't know what's in the documents. My lawyers have not suggested I ask what documents they were.
--:-- Andrew Prokop: We the public are learning about these documents this week. But when did the Biden administration or the president himself learn about these documents?
--:-- Sean Rameswaram: So the timeline dates back to November, just before the midterm elections. And according to Biden's team, they were preparing to vacate this office, which it's in D.C., but it was set up for Biden, basically a center established by the University of Pennsylvania after Trump became president.
--:-- Andrew Prokop: We learned that they were in the process of closing out a Washington, D.C.-based office that Biden used when he worked as an honorary professor from about 2017 to 2019.
--:-- Sean Rameswaram: Biden's team notified the White House, which notified the Justice Department and Attorney General Merrick Garland. This is back in November, assigned a U.S. attorney who had been a holdover from Trump's administration to look into the matter and determine whether a special counsel would be necessary to investigate this further.
--:-- Andrew Prokop: Back in November, something else happened in November, Andrew. the midterm elections. Was this not announced to the public then out of convenience for the Biden administration?
--:-- Sean Rameswaram: When it comes to late breaking announcements about highly charged political investigations before the midterm elections, the Justice Department actually has policy about it. They're not supposed to do it.
--:-- Andrew Prokop: James Comey somewhat violated that when he made his announcement in 2016, a week before the Trump-Clinton election.
--:-- Sean Rameswaram: I here to give you an update on the FBI investigation of Secretary Clinton use of a personal email system during her time as secretary of state
--:-- Andrew Prokop: But since then there been a pretty strict understanding at DOJ that they not supposed to you know when situations are developing information is fast moving
--:-- Sean Rameswaram: That like running out in public and announcing they have an investigation all of a sudden isn't something they should be doing.
--:-- Andrew Prokop: And of course, all of this sounds a little reminiscent of another president who couldn't help but take some documents home.
--:-- Sean Rameswaram: How are these cases similar? How are they different?
--:-- Andrew Prokop: Well, that's what's looming over this entire thing. The similarity with the Trump investigation into mishandling classified documents. When FBI agents searched Mar-a-Lago, they found top secret documents and dozens of empty folders marked classified inside former President Trump's personal office.
--:-- Sean Rameswaram: Former President Donald Trump's legal team is preparing to respond to the Justice Department's appeal of the special master ruling. The DOJ arguing that classified documents taken from Mar-a-Lago are not Trump's personal records and delaying the investigation will impact national security.
--:-- Andrew Prokop: From what we know now, the difference is the number of documents. We're talking about hundreds for Trump and it's not clear exactly how much, but a rather smaller number for Biden.
--:-- Sean Rameswaram: Then you have the issue where, you know, Trump didn't want to give these back. He knew he had them and he didn't want to give them back.
--:-- Andrew Prokop: Trump offered a new excuse for taking classified documents. He said he wanted them for his presidential library.
--:-- Sean Rameswaram: We are similarly in the dark about what exactly both the Trump and Biden documents were. But there has been some reporting from The Washington Post that Trump had some very sensitive documents involving intelligence about Iran and China that could expose sources.
--:-- Andrew Prokop: And Biden had some intelligence documents, also about Iran in one case, apparently. But there's been less reporting about what exactly they were and how sensitive they are.
--:-- Sean Rameswaram: One difference here, Andrew, as you might recall, is that it took Merrick Garland a long time to appoint a special counsel to investigate the former president. It seems to have not taken much time at all to appoint a special counsel to investigate the sitting one. How come?
--:-- Andrew Prokop: And once Trump was under investigation and had the special counsel going for this specific issue, for the same issue to arise about Joe Biden and for Garland not to appoint a special counsel would have been probably probably difficult to justify.
--:-- Sean Rameswaram: People in these top Justice Department roles are often concerned about the perception of bias, and he wants to make sure there is no perceived bias. So that's why it was probably a pretty clear cut decision for him.
--:-- Andrew Prokop: I signed an order appointing Robert Herr a special counsel for the matter I've just described. The document authorizes him to investigate whether any person or entity violated the law in connection with this matter.
--:-- Sean Rameswaram: I would add, though, that that one thing we're missing is that we don't really know what the the initial look at this from the U.S. attorney found. We don't know what facts Garland had and what perhaps influenced his decision to do this.
--:-- Andrew Prokop: We don't know what the initial look at this from the U.S. attorney found. We don't know what facts Garland had and what perhaps influenced his decision to do this.
--:-- Sean Rameswaram: It could have been purely a concern about possible bias and he doesn't think the facts look so bad at all. Or maybe he does think there's something a little concerning about the facts that have been uncovered so far.
--:-- Andrew Prokop: And I would add that Biden, as the sitting president, cannot be indicted right now. That's the Justice Department's understanding of the law.
--:-- Sean Rameswaram: What is up with these presidents walking away with these documents, Andrew? Should we just assume this is happening in every administration?
--:-- Andrew Prokop: Overclassification has been a pretty consistent problem with the U.S. government. It's been widely discussed. There's been talk about it with regards to, you know, the investigation that embroiled Hillary Clinton as well about her personal email server, whether some of the purportedly classified information that went on to her personal email was kind of maybe not what we might think is the nation's most sensitive secrets.
--:-- Sean Rameswaram: Of course, there have been other classified information scandals involving more deliberate wrongdoing in the past. General David Petraeus, who was Obama's CIA director, gave information to his biographer and lover. General James Cartwright, under the Obama administration, gave information to a reporter.
--:-- Andrew Prokop: And so, you know, there have been investigations of such things in the past. But generally what they're looking for is deliberate knowing wrongdoing. If it's something like a mix up, they're probably not going to recommend criminal charges for it.
--:-- Sean Rameswaram: And that's what they're trying to establish right now. But we can assume to hear so much more about this in the coming weeks, months and who knows, maybe years.
--:-- Andrew Prokop: Well, the House Republicans are certainly going to try to press into this further. They're going to look for any potential double standard that they can argue exists.
--:-- Sean Rameswaram: Once we get this information and digest it, then we'll go from there. I'm not saying we're going to open a full-scale investigation, but we have questions.
--:-- Andrew Prokop: You know, there is a fair amount we still don't know about what exactly happened here. And there are possibilities about what this was. And, you know, it's possible that if there is a look into this from the new special counsel, that they will find that this was pretty much just a mix up and that there was nothing else to this from Biden and that maybe he was a little sloppy.
--:-- Sean Rameswaram: But it's certainly not deliberate criminal wrongdoing. We'll surely be hearing more from Andrew Prokop on Today Explained as this story develops.
--:-- Andrew Prokop: For now, that's all though. More on why this keeps happening and how we can stop it and why we should stop it when we return
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--:-- Sean Rameswaram: What's in the box? Today Explained, we're back here with Steve Riley from Grid, a startup news organization here in Washington, D.C.
--:-- Steve Riley: Steve Riley is with Grid News. They write a lot about politics, but also other things. You can find them at grid.news.
--:-- Sean Rameswaram: Steve, we had the Mar-a-Lago raid over classified documents. Now we've got President Biden's lawyers turning in his classified documents that were at an office in University of Pennsylvania or a garage in Delaware. It seems like this is happening a lot, that presidents or vice presidents are walking out of their offices with important documents.
--:-- Steve Riley: I spoke with a former top official at the National Archives about this very question, about how often this is in light of the revelations last year about former President Trump and this week about President Biden.
--:-- Sean Rameswaram: What he told me was that at all levels of government, it's not necessarily an uncommon occurrence to have what they call a security violation where classified records are accidentally or inadvertently intermingled with unclassified records and end up leaving the secure environments in which they're supposed to be maintained.
--:-- Steve Riley: Comforting. But there are perhaps what could be comforting here is that there are procedures that are supposed to be followed when this does happen.
--:-- Sean Rameswaram: For instance, this top official, former top official at the National Archives, told me an anecdote from his time in office where a staffer had accidentally stapled a classified document to his itinerary for a trip.
--:-- Steve Riley: And he found this classified document in his briefcase when he arrived at the hotel.
--:-- Sean Rameswaram: And he told me there is a process to follow when that happens. You notify your security official, you keep that document in your possession, and there's a procedure for that.
--:-- Steve Riley: And so mistakes do happen. These are human beings and there are ways to deal with those as they occur.
--:-- Sean Rameswaram: Obviously, in the Trump and Biden cases here, they're unique in that they are not everyday bureaucrats. They're dealing with higher levels of secure information. They're the former president, obviously, and former vice president, current president.
--:-- Steve Riley: And it was not just one document in Trump's cases. It was hundreds of documents. And in the case of Biden, we don't know exactly how many yet, but multiple records were at play.
--:-- Sean Rameswaram: So this is one thing we expect both special counsel Jack Smith in the Trump case and special counsel Robert Herr in the Biden case to be looking at is how these mistakes happened or were they mistakes and were proper procedures followed once it was discovered that these classified records had left their secure environments.
--:-- Steve Riley: Well, let's talk about how these procedures are supposed to work just inside the White House for a moment here since you've reported on this.
--:-- Sean Rameswaram: I mean, obviously, the president's the most powerful person in any room. But what about the vice president? Should like Obama have been there saying, Joe, no, don't take those documents. Come on, man.
--:-- Steve Riley: The the rules are for handling classified documents. It's actually a kind of complicated constellation of federal statutes, regulations and executive orders that guide the process.
--:-- Sean Rameswaram: And one of the main safeguards is the Presidential Records Act, which is supposed to detail how records are disposed of, how they're maintained.
--:-- Steve Riley: It requires the White House to work with the National Archives on retaining and properly securing classified records.
--:-- Sean Rameswaram: Additionally, the president and the vice president have the same declassification authority under the law.
--:-- Steve Riley: So the president and the vice president should be theoretically operating under much of the same processes and procedures and requirements.
--:-- Sean Rameswaram: There was a historical footnote that bears mentioning here in which there was a dispute with the National Archives and former Vice President Dick Cheney over whether the Presidential Records Act applied to the vice president.
--:-- Steve Riley: The Vice President Cheney's office argued that because the Constitution makes the vice president president of the Senate, that the Presidential Records Act didn't apply to the vice president.
--:-- Sean Rameswaram: And that's possibly notable still because that dispute was never resolved.
--:-- Steve Riley: So that's something we may be hearing a little bit more about if this Biden classified records situation continues to gather steam.
--:-- Sean Rameswaram: Interesting. Tell us more about the Presidential Records Act, because that seems like it's going to be pretty important, too.
--:-- Steve Riley: So the idea that presidential records belong to the people of the United States and not to the former presidents personally is actually a relatively new one.
--:-- Sean Rameswaram: For the first two centuries of the nation's history, presidential records were considered the personal property of the president once he left office.
--:-- Steve Riley: Congress enacted the Presidential Records and Materials Preservation Act in 1974 following the Watergate scandal.
--:-- Sean Rameswaram: And I think too that I could say that in my years of public life that I welcome this kind of examination because people have got to know whether or not their president a crook
--:-- Steve Riley: Well, I'm not a crook. Presidential records were not considered government property until 1978 when Congress passed the Presidential Records Act.
--:-- Sean Rameswaram: And the Presidential Records Act states that upon the conclusion of the president's term. The Archivist of the United States has given the responsibility for the custody, control, preservation and access to these presidential records.
--:-- Steve Riley: So in other words, this is a relatively new idea and we're still working out some of the intricacies of it, apparently, from what we've seen in both the case of former President Trump and President Biden.
--:-- Sean Rameswaram: So given Steve that we have at least two cases here two administrations in a row where classified documents are growing legs and walking out of the white house is there a problem with the presidential records act experts i spoke with about the mar-a-lago situation and the biden situation described what amounts to a president-sized hole in the White House system designed to protect secret records.
--:-- Steve Riley: Notably, the Presidential Records Act includes no enforcement mechanism, and that's something that experts and advocacy groups have argued for years needs to change, even before we knew about these revelations.
--:-- Sean Rameswaram: Some experts I spoke with said they're hoping this renewed attention on document preservation might help spur some lasting reforms.
--:-- Steve Riley: One thing experts mentioned is possibly eliminating a provision in the Presidential Records Act, which allows the president to decide what's personal and what is government information.
--:-- Sean Rameswaram: Another idea that's been floated is real-time reporting from the White House to the National Archives regarding an administration's records preservation policies.
--:-- Steve Riley: So these are things that flew under the radar for decades before the last six months, what transpired and now are getting a lot of renewed attention and a lot of advocates and transparency experts are glad to see it.
--:-- Sean Rameswaram: And as Andrew mentioned earlier in the show, there's going to be a lot of attention on what exactly happened here as it pertains to President Biden from Congress.
--:-- Steve Riley: The House of Representatives, obviously newly run by Republicans. Do we think any of that added attention might actually lead to a strengthening of the Presidential Records Act or is that too, I don't know, productive for this Congress?
--:-- Sean Rameswaram: If there's ever been a time for that, it's now. It's clear that this problem of classified records leaving the White House at the end of presidential administrations has the attention of Congress.
--:-- Steve Riley: It has the attention of both parties of Congress. We saw Democrats in Congress were alarmed by this issue last year, and now Republicans are expressing concern about problems with classified records leaving the White House at the end of an administration.
--:-- Sean Rameswaram: So we might have a rare moment of bipartisan accord where we see a problem that needs to be addressed.
--:-- Steve Riley: So that's definitely a conversation I expect this Congress will be having as we go forward.
--:-- Sean Rameswaram: And just for the fun of it, Steve, I wonder, you know, for people who hear these stories about Trump and his documents and Biden and his documents, and they're just like, who cares? They're just some documents. It's not like they're the codes to the nukes or whatever.
--:-- Steve Riley: Why does it matter that presidential documents, that documents from various administrations don't leave the White House or the National Archives?
--:-- Sean Rameswaram: It's important to remember that these documents are classified in the first place because they would be of value to potential adversaries if they were to see them or come into possession of them.
--:-- Steve Riley: That's the whole purpose of the classification system. These are documents designated to be especially sensitive and needing security.
--:-- Sean Rameswaram: And they may have information about nuclear secrets that we don't want to be shared with other governments.
--:-- Steve Riley: We don't actually know, you know, the extent of the sensitivity of these records in either the Trump or the Biden cases, although we know a lot more about Trump's Mar-a-Lago documents.
--:-- Sean Rameswaram: And there were some extraordinarily sensitive documents stored in what appears to be a secure storage facility at a resort where people were coming and going and there's all sorts of activity.
--:-- Steve Riley: And also in the case of President Biden's garage, that was obviously not secured in the way you'd want to secure sensitive records that would be valuable to a foreign government.
--:-- Sean Rameswaram: So this is incredibly serious in every case where sensitive information leaves a secure environment and comes into a storage facility somewhere where it shouldn't be.
--:-- Steve Riley: Steve Riley is with Grid News. They write a lot about politics, but also other things. You can find them at grid.news.
--:-- Sean Rameswaram: This is Today Explained from Vox.com.
--:-- Noel King: Our program today was produced by Siona Peterous and Haleema Shah.
--:-- Sean Rameswaram: Edited by Matt Collette.
--:-- Noel King: Fact-checked by Laura Bullard.
--:-- Sean Rameswaram: Engineered by Paul Robert Mounsey.
--:-- Noel King: Thanks to Noel King for helping us ideate on this one.
--:-- Sean Rameswaram: Avishai Artsy for naming the episode.
--:-- Noel King: And Andrew Prokop for self-engineering his interview in our studio all by himself. What a trooper.
--:-- Sean Rameswaram: For all our podcast people, we are off Monday for Martin Luther King Jr. Day.
--:-- Noel King: For all our radio people, we're cooking up something special for you.
--:-- Sean Rameswaram: Bye. The End
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--:-- Sean Rameswaram: Liberty. Savings very underwritten by Liberty Mutual Insurance Company and affiliates. Excludes Massachusetts.
