The Difference Between How Trump, Biden, Pence, and Clinton Mishandled Classified Information
I should first state where I’m coming from (because #IANAL). I served in the US intelligence community from 1996-2004, first as an enlisted Marine, and then as a federal employee at NSA and later CIA. I worked on watchfloors and did ops, but most of that career was spent managing and/or securing classified systems. I was trained at the Fort Washington¹ facility in qualifying SCIFs², had my classified courier card for years, and in my time saw a few classified mishandling cases up close.
Next is a bit of background on how classified information handling works. In the 99.99% case, classified docs are only ever handled in SCIFs (which have fence-lines and armed guards). Printed documents are marked with their classification level, and when not in use everything is locked in a properly rated safe, managed with access logs. Classified computer systems are rated to the maximum level of classified allowed, and also secured when not in use. Systems at different classification levels are air-gapped to prevent leakage (technically it’s more complicated, but accurate for this discussion).
The last bit of background is the legal framework for classified document handling. There actually is no law defining classified information or handling processes. Rather, there’s the 1917 Espionage Act³, plus 100 years of legal precedent and executive orders (most recently EO 13526⁴). The Espionage Act refers to a very broad category of “information respecting the national defense” and makes illegal the dissemination of this information through either “willful intent” or “gross negligence.”
The key point is that the law applies to a broad category of information, and the EOs build a framework for identifying such information and how to securely handle it. This is also the main basis that the courts use to delineate violations of the law, which is why classified mishandling is prosecuted under the Espionage Act.
With all of that out of the way, it’s time to look at each of these cases of classified mishandling. I’ll start with Clinton’s case first, because it’s the weirdest, in that it only barely involves classified data handling. That might seem confusing given all the press coverage in 2016, but the most accurate description of what Clinton did is that she forwarded emails from her official DoS (Department of State) email account to a personal account. The critical thing here is that because her DoS account was on a FOUO (For Official Use Only⁵) system, directly connected to the public Internet, those emails never should have contained any classified information. FOUO systems may contain sensitive information, but are explicitly not for handling classified information.
Accepting that, sometimes classified information leaks to a FOUO system. This tends to happen one of two ways, the first of which is usually in preparing briefings/reports for a lower classification level. It’s common to pull some of that information from classified documents, declassify as needed, and then transfer that to a lower classification system. Sometimes mistakes are made in this process and (now invalid) classification markings are left in the downgraded document. That explains the classification markings found in a few of Clinton’s emails⁶.
Classified information can also leak without being marked, if the substance of discussion simply includes information that would be considered classified. This is why it was reported that Clinton had 2,100 classified email threads⁷. Because, all of her emails were sent to the classification authorities at all of the intelligence agencies, and they reviewed everything, flagging anything they would have viewed as classified. FWIW, I doubt that any senior national security official’s FOUO inbox would make it through this process without coming away similarly flagged (but that's its own very long discussion).
With that context, here’s the first critical thing to understand about Clinton’s emails: The classified information leak was independent of her forwarding her official email to her personal email address. This is because any classified information she received was already leaked on the FOUO systems that the emails were coming from. So, the classified mishandling situation is the same regardless of whether Clinton’s email had remained on the FOUO DoS server or on a machine in Clinton’s basement. Neither are authorized for handling classified information.
So, then what was wrong with Clinton forwarding her FOUO emails to a personal address? Mainly it comes down to the government’s obligations regarding records retention and the mandatory security baseline for the systems they manage. Those are both extremely good reasons for why Clinton shouldn’t have forwarded her emails, but they don’t really have anything to do with classified information handling.
And to be fair to Clinton, since she was using a FOUO system, she had a reasonable expectation that she wasn’t receiving any emails containing classified information. So, unless she personally introduced the classified information into the discussions that got retroactively flagged, it’s entirely possible that she never even mishandled classified herself. Rather, she may have simply had additional copies of emails that had already leaked to FOUO systems. (FWIW, I don’t expect to ever find out the answer to this.)
This gets to the legal repercussions of what Clinton did. Once again, IANAL, but I did see cases of similar infractions. And as long as the offending party cooperated, there was very little in the way of repercussions. About the worst case would be junior enlisted getting slapped with non-judicial punishment⁸ because their commander wanted to make an example of them. But outside of that, pretty much anyone else in the same situation would just be told to stop, or at worst get a minor slap on the wrist.
Either way, I cannot imagine what grounds someone could even be prosecuted over if they're simply forwarding emails from a FOUO account, to their personal account, for the purposes of accessing their email from another device. Moreover, the scope and depth of the Clinton investigation would normally have been reserved for someone stealing actual marked classified information or otherwise bridging classification levels between systems. Clinton genuinely received more scrutiny and greater repercussions than pretty much anyone else in her situation would have. None of this is to say that what Clinton did was a good thing, but it genuinely was far less than it's usually made out to be.
Now, on to Biden and Pence, which are nearly identical cases of classified mishandling. Remember several paragraphs back about the 99.99% case? Well, that’s not the White House, because that place is just weird. It has a mess of spaces cleared for handling classified, and uncleared people endlessly circulating about—some of whom literally live there! The whole thing is a security nightmare, and they should ban printed classified just as a precautionary measure.
That’s why I’m not surprised that Biden and Pence wound up with marked classified papers mixed in with their other documents. TBH I’m surprised it doesn’t happen more often. But that sort of thing is also why the statute sets the bar at “willfully” or “negligent.” Both Biden and Pence did exactly the right thing in notifying the appropriate custodian of the mistake, turning over everything, and complying fully with investigations. It was all by the book, and no one would ever be charged for something like this.
Finally, we get to Trump. His case is highly unusual, but not at all complicated. The indictment⁹ provides mounds of evidence that he “willfully” took large quantities of classified material with him when he left the White House. After NARA (National Archives and Records Administration) contacted him about returning the missing classified material, he chose to lie, evade, and then turn over only some of the stolen documents. Eventually the FBI had to raid Mar-a-Lago to recover 300+ additional classified documents, and it’s still unclear whether everything has been recovered.
The whole point here is that the Trump case is genuinely unprecedented in just how crazy it is. The volume and scope of the theft puts it in league with espionage cases that land people in prison for decades. Even worse, the whole crime is documented with recordings, corroborating witnesses, and pretty much everything a prosecutor could dream of.
While I'm at it I should also quickly knock out some of the more common attempts I’ve seen to dismiss the criminality of Trump’s situation, so here goes:
Are the classified documents in fact Trump’s property? No. The Presidential Records Act is entirely clear on this¹⁰.
Could Trump have declassified these documents already as president? No. EO 13526 sets out the classification process, and if he wanted to expand it to include psychic declassification he had to write a superseding EO laying out such a process.
Does it matter that Trump doesn’t appear to be an agent of a foreign power? No. Just ask Petraeus¹¹ or Schulte¹²; you break the law when you willfully take the information and risk dissemination to those not cleared for access.
Does it matter that Trump stored the information in a locked room? Accepting that a resort with random people ambling about is laughably unsafe, the fact is that there are clear regulations for storage and transport of classified material, and Trump was so far outside the bounds of those that the tiny measures he took are immaterial.
TL;DR: Literally anyone else who did what Trump did would already be sitting in federal prison for at least a decade. Trump is getting an unheard of level of special treatment—entirely to his own benefit! There’s simply no comparison to what Clinton, Biden, or Pence did. The most appropriate comparisons for Trump’s case all involve people currently serving long federal prison sentences… or people who already died in prison.
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¹ https://en.wikipedia.org/wiki/Interagency_Training_Center
² https://en.wikipedia.org/wiki/Sensitive_compartmented_information_facility
³ https://en.wikipedia.org/wiki/Espionage_Act_of_1917
⁴ https://en.wikipedia.org/wiki/Executive_Order_13526
⁵ https://en.wikipedia.org/wiki/For_Official_Use_Only
⁶ https://www.politico.com/blogs/under-the-radar/2016/07/hillary-clinton-classified-emails-error-225194
⁷ https://www.usnews.com/news/politics/articles/2016-02-29/state-dept-wins-dispute-over-clinton-email-on-north-korea
⁸ https://en.wikipedia.org/wiki/Non-judicial_punishment
⁹ https://www.justice.gov/storage/US_v_Trump-Nauta_23-80101.pdf
¹⁰ https://en.wikipedia.org/wiki/Presidential_Records_Act
¹¹ https://en.wikipedia.org/wiki/David_Petraeus#Criminal_charges_and_probation
¹² https://en.wikipedia.org/wiki/Joshua_Schulte
