I would also include the co-hosts of "Good Morning Liberty" podcast, particularly for their incompetent sarcastic comments on the issue but they have more of a limited audience and I don't have transcripts. This is more of an integrated summarization of several points I've recently made on Twitter.
First of all, note that national secrets and their safeguard falls under the Executive Branch; under the President's roles as Commander in Chief and in conducting foreign policy. Obviously untimely disclosures pose risks to military and intelligence operations and personnel. There's always been a tension with the First Amendment and broad application and enforcement of the Espionage Act.
So, the current classification system is implemented in context of Presidential executive orders, and up to 4 million screened government employees and contractors have access to subsets of classified data on a functional need to know. These data are ranked on level of risk to the US, with "top secret" reflecting potentially gravely serious damage to the nation. The level of access requires increasingly extensive background checks, which can take up to several months to complete.
I myself have never held top secret clearance; I had applied for one years back when I accepted a contingent job offer as a Department of Energy database administrator contractor; it wasn't completed several months later when I got another job offer. What I remember most about this process was an hours-long interview going over the 50-odd pages of my application (including years of detailed information over past employers, telephone numbers of past supervisors, etc. I remember one former employer had moved headquarters, two employers were no longer in business, and another had merged; at least one former boss had been fired. Then the investigator POC called me up screaming about my first week in West Virginia; I was commuting from Maryland over 200 miles away; I rented an apartment my first day, but the landlady said it wouldn't be ready for a week, so I ate the costs of staying at a local motel. So the investigator accused me of a material omission and grumbled of having to make a trip to interview the motel manager. You've got to be kidding me; I saw the check-in/out clerk twice. Then I got a call about my USPTO contractor employer's vacant home office in Alexandria, VA. I had double-checked the Internet in completing the application. I found the owner's resume on Linked-In and basically found out they lost their USPTO contract recompete and subsequently went out of business. Some government "investigator"--I knew better than him how to use the Internet.
The government takes classified data rules and regulations seriously. Decades ago, I had served as a math instructor (with my Master's in math) in the Navy Nuclear School. At the time, Rickover oversaw the nuclear Navy and personally interviewed prospective officers, even those of us who never as much as set foot on a nuclear sub. Our training requirements included having to self-study courses like reactor design concepts with high marks. I think this stuff was already in the open literature. But we were instructed to mark all notes and we were not allowed to leave the building with any related material; any study had to be on-site. So, I saw it as mostly training for compliance, but keep that in mind when we talk non-compliance with Trump, Biden, Pence, etc. If and when you are granted a clearance, you have a lifelong obligation to comply and can be subject to prosecution (e.g., under the Espionage Act).
This discussion leads to the current kerfuffle involving at least Trump, Biden (as VP and Senator), and Pence. Now there are 2 different issues going on here: as POTUS and VP, all 3 had unfettered access to classified documents; however, as a former POTUS/VP, you have no need to know (unless the current POTUS decides otherwise). There are rules for securing classified data after functional use. Second, there are Presidential documents (not necessarily classified); all Presidential Records, by the President Records Act, are government property (as is all classified material) and due to be received by NARA at the end of their last (nonconsecutive) term in office.
Now there are a couple of nuances, relevant to Amash's annoying take:(which obsesses on their storage in a SCIF, a vault like structure which you normally access to retrieve documents and communicate secure emails (SIPR vs. NPIR)--which is a relevant distinction in the Hillary Clinton email kerfuffle). Part of the security is you can't take smartphones or other technology (e.g., recordable media like thumb drives) into a SCIF). And this is part of the troubling aspects of Trump's maintaining some 325 classified documents. FNC would point out that the Trump storage was padlocked (especially in disingenuously comparing the Trump and Biden cases). What we know is that the USG had to demand video surveillance and a padlock; I don't think they necessarily "knew" Trump had classified documents in storage; what we know is in the MAL 15-box pickup a year ago, there were a number of classified documents. I do recall reading that video surveillance caught boxes being moved in and/or out of storage, and do not know what, if anything, happened with those boxes and/or contents. I'm sure Trump and others had cellphones or devices which could have made illegal copies of any relevant documents. I'm not saying that was done, but any comparison of Trump's storage room to a SCIF is laughably absurd.
The second thing is the default classified data lifespan is 10 years, and I think there's an automated purge after 25 years, but depending on the material in question that can be extended. We really don't the nature of the documents, but presumably the ones for Trump and Pence were more recent. There's been some discussion that some of the documents found at Biden's former think tank and/or residence were from Biden's Senate tenure, which ended in 2009. (I'm not sure how they know which are from Biden's Senate vs. VP tenure because VP Biden could have reviewed older documents.) But as I've pointed out, it's highly possible Biden's Senate-era documents have in part or whole been expired. The Senate-era documents do merit Amash's SCIF references, because under current rules, members of Congress have to follow SCIF-like restrictions, so Sen. Biden couldn't have lawfully left the SCIF with documents, copies or notes. We need more information, including whether the documents are expired.
I've written about Trump's faux pas on the classified document issue in multiple posts. Briefly, Trump was supposed to turn over all documents by 1/21/2021. NARA spent nearly a year of Trump stonewalling returning over a dozen boxes of documents in a state of denial over USG ownership, at one point saying he was interim custodian until his Presidential library is built. Apparently, NARA had to pressure Trump by promising to escalate the matter to DOJ or Congress before Trump agreed to let NARA pick up 15 boxes a year ago. NARA noticed classified documents, and like any unexpected finding to an audit, expanded scope of the audit. Some unidentified sources (Secret Service?) suggested some documents had been withheld from the pickup. Weeks later Trump was served with a subpoena to return any and all residual uncollected documents, and there was a pickup last June. Sources told the government yet more documents weren't delivered via the second pickup, leading to the August FBI search, including one or more of the documents in his own private desk, which cannot be explained away. I'm not a lawyer and am not going to explain all the talking points made by Trump and others about certain personal items temporarily taken. My understanding is the mix of, say, classified and unclassified items is part of the evidence. For instance, Trump can't claim he separately held them aside for special protection.
Obviously, we don't have evidence of who, if anyone, accessed these up to 325 or so documents, if Trump made copies, etc. That's why the government queried about visitors to MAL.
My understanding is the Biden part of an analogous issue occurred when they were closing down his former think tank office and discovered maybe a baker's dozen classified-marked documents and escalated the issue. As in the expansion of the audit, they looked at Biden's home and garage and discovered a smaller number of documents. FNC and partisan Republicans have tried to turn the tables on Biden, e.g., who visited the Biden home? I don't know about the circumstances of the search or the documents, but from what I understand, Trump had more than 10 times the number of classified documents, and most of those were more recent. I'm not sure Biden even knew he had classified documents at the think tank or home. It could have been packing errors when he left office. We know, unlike in Trump's case, Biden's lawyers immediately forwarded the items upon discovery.
One of the things I've particularly discussed is anecdotal notes that at one time during Trump's tenure a classified document was found in a ladies' restroom and Trump apparently had a habit of carrying classified materials to his living quarters, and staffers had to go and retrieve them. So, we know that Trump's management to enforce classified data regulations was suspect, and that alone should be a factor in voter's rejection of Trump's reelection. Never mind that supposedly he revealed sensitive information in a conversation with Putin. If a cleared employee or contractor had done any of these things, he could have been prosecuted. Trump's lack of due diligence in protecting national secrets is incompetence and a risk to national security
I don't think Trump, Biden or Pence will be charged under the Espionage Act because I'm not sure one could prove intent of wrongdoing, evidence of leaking the information to others at the expense of the US, etc. Some cleared personnel should have overseen packing activities to ensure no classified documents were taken, apparently in both the Obama and Trump Administrations. Better yet, there should be EOD daily sweeps at the offices of POTUS/VP to ensure classified documents are secured.
What I think Amash got wrong--and perhaps it's a nuance to tweeting because he's usually quite articulate and specific--is his understanding of a SCIF. I think even Fox News got this right--that the White House and the VP's office can be considered SCIF's, because of their level of security. Still, there's no excuse for relaxed security within these places like leaving a classified document in a bathroom. Even if a person is cleared, the overriding principle is need to know. Some people knew the right thing to do, like escalate the issue of the document in the restroom.
I don't think it's likely the 3 people mentioned cherry-picked classified documents to be moved home or another facility, as souvenirs or whatever. I think the POTUS or VP are too busy to supervise the move-out of the offices. I can't speak to whether the actual movers were vetted and trained to filter out classified documents and secure them, the level of involvement of NARA in moveouts of POTUS/VP documents in a nonconsecutive end of a term, etc. Obviously, there should be a hardening of security around day end and move-outs as part of the post-audit without impairing the POTUS and VP's ability to do the nation's business.
In Pence and Biden's cases, it is conceivable they weren't even aware classified documents had been packed and at their locations. I'm not sure why Biden's lawyers found classified documents in closing out Biden's think tank office but not in opening it or why Pence also found documents recently. It could be that the USG in the aftermath of the Trump discovery did due diligence and requested former Presidents and Vice Presidents to go through moving boxes, personal offices, etc. I am not in a panic over a few papers found at Biden or Pence's residences; I don't think it was obvious that classified documents were stored there and I'm sure they have some sort of implemented security.
Trump's behavior is more difficult to explain. He fought returning Presidential and/or classified documents tooth and nail, and a natural inference is where there's smoke, there's fire. I suspect he or his lawyers went through moving boxes before the 15 boxes were released.
As for Trump's self-serving excuse that he had preemptively declassified documents that had been moved, there is a vetting process for declassification, there's no paper trail and given Trump's pattern of impulsive behavior, e.g., his 2017 discussion with Russians, there's more reason for skepticism. Yes, as POTUS, he can change policy, but there is the rule of law: no one is above the law, and we shouldn't have disparate standards. For example, I know of contractors who have been disciplined for leaving their CAC's in their unattended work PC's. (CAC's can be used to access certain facilities and have certificates that can be used to sign and encrypt emails.) But a former POTUS has no authority to declassify, and even if Trump declassified something, Biden has the authority to reclassify them and deny him access.
I know leftists fantasize about prosecuting Trump, disqualifying him from running from office again, etc. There aren't sanctions in the Presidential Records Act. The burden of proof is on the USG to prove nefarious intent. If I had been in Trump's position, I would never have picked a fight with NARA in the first place; I don't think he's helped himself politically with this scandal beyond his own base. I'm not sure what evidence AG Garland has; I'm not sure he could get a conviction based on what I know. It may be that the USG should declare victory on getting the documents from Trump.
As for FNC charging hypocrisy over the Biden situation, let's just point out VP Biden and POTUS Trump had differing role responsibilities and access, Trump's access was more recent and sensitive, and the count of violations was multiple times higher in Trump's case; the comparisons just don't work.
