Why the Trump-Biden classified documents aren’t ‘apples and oranges’
Tom Rogan
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The unauthorized retention of classified materials by President Joe Biden and former President Donald Trump is of significant concern for a simple reason. To understand why, consider how intelligence information would be classified under some hypothetical scenarios.
Had the National Security Agency or a closely allied counterpart service intruded into Iranian military networks and gained near real-time access to military orders, the ensuing intelligence reports would be classified with one or more Top Secret-Sensitive Compartmented Information control caveats (TS-SCI). The U.S. wouldn’t want unauthorized persons to know that it knew, and how it knew, what Iranian forces were about to do.
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Had the Central Intelligence Agency received a report from an agent inside the People’s Liberation Army’s Joint Staff Intelligence Bureau that his unit’s leave was suddenly canceled, the ensuing intelligence reports would be classified with one or more TS-SCI control caveats. The U.S. wouldn’t want unauthorized persons to know that it had an agent in the PLA’s premier intelligence organization or that it knew of potential PLA preparations for war.
Had an Office of Naval Intelligence listening device collected the image or sound of an unidentified object’s exceptionally high-speed transit of the GIUK gap, the ensuing intelligence reports would be classified with one or more TS-SCI control caveats. The U.S. wouldn’t want unauthorized persons to know how accurate its sensors are or where they are located.
These three examples underline why the U.S. has laws governing the strict control over, access to, and handling of classified materials. The apex of these restrictions pertains to TS-SCI intelligence material. We now know that both Trump and Biden retained such material without authorization. The government’s top priority is thus to find out what risks to national security have been incurred by prospective unauthorized access to that material.
I note this in light of the absurd attempt by some Biden supporters to present his mishandling of classified material as no big deal. Let’s start with Barb McQuade, a University of Michigan law professor and former U.S. attorney (a role that entails leading the prosecution of sensitive cases such as those involving classified material).
McQuade has an upcoming book on how disinformation is “sabotaging American democracy.” Unfortunately, however, McQuade was happy to offer her own disinformation to MSNBC on Monday. She stated that “I think there really are apples and oranges instances, this is a handful of documents that appear to have inadvertently been left behind. As opposed to Donald Trump’s case where he has willfully withheld boxes and boxes of documents despite many months of an effort to recover them by the National Archives.”
It is laughable that a former federal prosecutor would say this with a straight face. After all, while McQuade is right that only Trump appears to have withheld classified material against National Archives demands that he return them, the first most exigent point of law on this matter is the nature of the documents themselves. Namely, the prima facie evidence (there is no dispute that the material was found in a Washington, D.C., think tank it was not supposed to be in) that Biden or someone on his staff misappropriated highly classified material.
Numerous news stories over the past 24 hours have also stretched their reports to play down the basic SCI-classified link between the Biden and Trump documents. This creative flexibility has then been used by Biden supporters to defend his position. Take Harvard law professor Laurence Tribe’s confident declaration that “the situations aren’t remotely comparable.” If Tribe is telling his students this, their preeminent education isn’t worth the price tag!
To emphasize: the basic, first point of concern regarding laws on the handling of classified information is the protection of national security. Again, TS-SCI caveats represent the apex of that concern. Again, both Biden and Trump had TS-SCI-controlled information in their unauthorized possession. Yes, distinctions appear to come into play with regard to how and why the documents were unlawfully retained in each case, and the relevant actions each man took to return, or refuse to return, the documents to the government. But the first point that makes this a story of apples and apples is that both men retained TS-SCI materials without legal authority and that national security has been directly imperiled as a result.
This isn’t rocket science. If a skilled SVR, MSS, Mossad, or DGSE officer knew that these documents were being held in a D.C. think tank or Mar-a-Lago without due protection or authority, that would be a big problem. Not just for the prospective jeopardy to U.S. intelligence methods and national security interests but for the potential of blackmail and compromisation of very high-ranking public figures.
Apples are apples.
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