Former President Donald Trump, former vice president Mike Pence, and President Joe Biden don’t have much in common. But all three got caught with classified documents that they took home. The incidents show a lot of things, including how cumbersome the classification system is. The Federal Drive with Tom Temin spoke with someone who spends a lot explaining this challenging issue: Yale law professor Oona Hathaway.

Interview transcript:

Tom Temin
And just review for us the sheer volume of documents that are classified. In an era when the last five presidents have said we’re going to default toward openness in our administration.

Oona Hathaway
Yes. So president after president has made such promises, and yet, president after president has produced more classified documents and the president before them. In the last year that the government kept records of the total number of classified documents, which was back in 2017, they found that they had produced about 50 million new classified documents that year. So it’s a lot of documents.

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Tom Temin
And is that resulting just from the risk averse nature of government, a lot of things are in place that can say, no, very few things are in place that can say, yes, just because a yes could result in some political disaster down the line.

Oona Hathaway
Yeah, that’s one of the big reasons that there’s a kind of default towards classification over nonclassification, there’s a lot of different features, there’s that, it’s so much less risky to classify something than to not classify it. If you’re working on something that may be, possibly as classified, it’s just a lot easier to classify it and a lot less dangerous for you personally, as a person working with the material. Because if you accidentally create a document as unclassified, that contains classified information, you can get in a lot of trouble, you get fired, potentially be criminally prosecuted. But if you classify something that doesn’t need to be classified, it’s not a big deal generally. So that certainly creates a lot of incentives. But there’s a lot of other reasons that somebody working on classified material tends to work to classify things or classify them more highly. Those are the cases when you work in a classified environment, you have multiple email servers, so you’ll have your unclassified email server, you have your secret email server, and you have your top secret email server. So think about the fact that how overwhelming your one inbox is, you have three inboxes, suddenly that you have to monitor, and the top secret gets a lot less stuff and it’s a lot more interesting. And so if you want somebody to read what you’re writing, you’re gonna put it in a more highly classified level, because it’s much more likely to be seen. So that’s another reason that there’s sort of this impetus towards putting things at a higher level.

Tom Temin
The moral equivalent of putting the exclamation mark on the email is to classify it.

Oona Hathaway
Yeah, exactly. And it’s also the case that when you’re working with classified material, you don’t want others to see it, you don’t want it to be leaked. And so if you put something in a classified server or you classify it, it’s much less likely to get leaked. So there’s lots of reasons that for people working with classified material, that they’re more likely to classify something, even if the risk of it being leaked isn’t really going to do any significant damage to U.S. National Security.

Tom Temin
And the other question in all of this, is the fact that what was found was not emails, is not electronic, it was boxes of paper in all these cases. Next to the Corvette, or on the floor, they’re in Mar-a-Lago wherever, I don’t know where Mike Pence’s was. But it seems like there’s a lot of printing out of these emails, or documents are generated in some hard fashion, hard copy fashion, that seems to belie the digitisation drive that goes back, that really began late George H.W. Bush, and got a lot of momentum in the Clinton administration.

Oona Hathaway
Yeah, I think that’s right. I think one of the reasons we’re seeing this at the levels that we’re talking about, so we’re talking about the vice president, former vice president and president, is that they’re more likely to generate written documents for their consumption. So, Joe Biden’s not reading, would guess, his email inbox. People are managing the flow of information to these high level government officials. And they generally are managing the flow of this information, through production of written documents that get handed to them during meetings. And those documents, some of them, the very highly classified documents, generally the best practice is for the briefer to take the documents with them when they leave. But occasionally, there’s reasons for members to want to hold on to that material. They want to be able to read it and review it, they have a meeting coming up, they want to review it in advance, part of that collection of briefing materials, which includes both, unclassified and classified documents. And in many cases, probably some of these documents just are not such a big deal. And so nobody’s really thinking carefully about making sure that the document gets put back into a locked environment.

Tom Temin
We’re speaking with Yale Law Professor Oona Hathaway. And there are rules, though, about taking notes and so forth. And so the printouts that are made for presidents and vice presidents, and to my knowledge, there is no computer PC terminal in the Oval Office that the president pecks away at. I don’t think that’s the case, then they get boxed. And how is it? What’s the process by which they can even get their hands on the boxes?

Oona Hathaway
Yeah. So when they’re leaving office, and of course, all the events that we’ve heard about recently are when the vice presidents and presidents have been leaving office, and then documents get taken with them, that should have been turned over to the National Archives, or locked up for use by their successors. And how does that happen? Part of the reason that happens is that, in the case of particularly former Vice President Pence and the documents that we’re dealing with for Biden, were documents that were produced when he was vice president and boxed up when he left. In those cases, what happens is they’re coming to the end of their term, there’s kind of a scramble at the end, vice presidential and presidential administration to kind of figure out, what can we take with us? What can’t we take with us? Kind of bat and boxing up, sometimes in a hurry, because you are trying to run the government up until the last moment, you are still vice president up until the inauguration. So you’re still have to be doing your job. And then they have to box things up in a very short period of time and get it out of there so that the new occupants of the Office can move in. And it’s not Vice President Pence, Vice President Biden are not sitting in their Office box in the stuff themselves. There’s a crew of aides who are doing that work, and they’re in a rush, and chances are good, and we don’t know the specifics yet. But chances are good that what happened is they’re looking at piles of paper, the vast majority of which are unclassified, and sticking them in a box, not entirely, realizing that there’s some classified documents buried in there. I understand, for instance, with Biden, that a lot of the materials were condolence letters and the death of his son, and that many of these boxes are just boxes and boxes of condolence letters. And it happens to be a case that sort of in they’re not great record keeping, but in there are some documents that are marked classified, and that sort of thing happens. The problem is that when you’re the vice president, you’re working with classified material, those kinds of mistakes really shouldn’t happen.

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Tom Temin
Yes. And is it fair to say or accurate to say that for each of those pieces of paper, there is an electronic analog somewhere, and so that you could possibly shred the paper versions, but that wouldn’t mean that the record is lost?

Oona Hathaway
That’s probably right. These written documents, these printed documents, generally, these days are produced on computer systems, and then those computer records are being kept. There may be handwritten notes as well, some of what we’ve been hearing were taken from the Biden house, were some handwritten notes. So there are some documents that include either, kind of writings on margins, or even just notes that are being taken in a meeting, which would be classified as well. But the vast majority of classified documents are ones that are produced on computers. And so there’s a record, an electronic record of that document as well.

Tom Temin
So really, the volume of classified documents produced by the government is not directly related to people taking them home with them when they shouldn’t when they leave office.

Oona Hathaway
No, we’re seeing the very tippiest tip of a very, very big iceberg. There’s massive amounts of documents being created. And what we’re talking about is just a tiny handful, really, across all the former occupants of the office. So again, when he was Vice President Biden, the Vice President Pence and Trump as well, former President Trump. We’re talking a relatively small number of documents. That’s pretty unusual, and that’s a very small number. There are thousands upon thousands upon thousands of documents, both that they will have seen in printed form, and that had been produced by their administration on all those matters, that of course, are being held in computer systems and transferred to the National Archives, it’s appropriate.

Tom Temin
And for those documents that are not classified, that a former VP or president might want to have for their library or whatever they want to do with it. Those are also records that actually are supposed to go to NARA as well, at the end of the administration. So are they allowed to have copies and remove those if they’re not classified?

Oona Hathaway
That is a really important question and I I think this is part of the reason for the challenge is, there’s something of a judgment call on the margins and the certain things that are sort of, obviously government documents. So letters from heads of state and classified material that are relevant to government programs, like those are clearly government materials. But there’s some things that might be a little bit more on the edge, a handwritten note from a personal friend, but who also happens to have a government office, is that a government document? Or is that a letter from a friend? How do we think about that? And I think that those are some of the judgment calls that have to be made. And again, when you’re packing up in a rush, you don’t necessarily have the time to think that through as carefully as you should. Now, ideally, what should happen is, if there are things that are sort of in that interim space, what you should do is pack them up, and probably ship them off to the National Archives, and ask them to review them to determine which ones need to be kept at archive and which ones can be shipped to library or kept personally. So that would be the ideal way to deal with these sort of, edge cases. But some of these things are personal documents and personal letters that people understandably want to keep for themselves. And sometimes, the line between the personal and political, it’s just hard to draw up or these very high level officials.

Tom Temin
So yeah, no real easy answer here then, is there?

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Oona Hathaway
I think that the answer, probably, is going to be to put in better systems. This was a systems failure. I don’t think that this was a case where with Pence and Biden, I don’t think this is a case where they serve maliciously tried to remove classified documents. It was a case where, overworked staffers working too fast, weren’t as careful as they should have been, that’s a systems failure. And so I’m confident that the next time the presidential administration ends, there’s going to be more care given and I think there should be more attention, in general to the fact that, we’re producing these huge volumes of of these classified documents. And maybe, this is a wake up call to realize that, maybe some of these things are not all that important, after all, and maybe they shouldn’t be classified, and maybe we should be rethinking the system more broadly.

 

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