by Harry Litman
The discovery of classified documents in former Vice President Mike Pence’s Indiana residence is a clarifying and pivotal event that throws into sharp relief conduct that in recent weeks has been lumped together.
Pence ordered the investigation of his home, which turned up some 12 documents marked classified, in the wake of the brouhaha over similar discoveries of classified documents at President Joe Biden’s Delaware home and former office.
The Pence documents shed more light on a critical question: How easy is it for classified documents to find their way out of the White House and become mixed into the private papers of former government officials?
Anecdotal evidence already suggested that it’s easy enough to do inadvertently, especially on the part of higher government officials, who rarely have a personal role in packing up their offices. Pence’s experience strengthens that idea.
There is no reason to doubt the assertion by Pence’s lawyer, Greg Jacob, in a letter to the National Archives that “Pence was unaware of the existence of sensitive or classified documents at his personal residence.”
That explanation, of course, is the same as Biden’s response to a rolling discovery of classified documents at his office and residence — to which conservative pundits and opponents have cried “scandal!”
Of course, there is a very bright line to be drawn between the unknowing conduct of officials like Biden and Pence on the one hand, and the intentional and likely criminal behavior of former President Donald Trump, who, from the available evidence, not only was aware that he had classified documents but purposefully spirited them away, and, more importantly, engaged in a 20-month campaign to stonewall legitimate efforts by the U.S. government to have them returned.
This is not to say that Biden’s and Pence’s conduct is OK. As they both acknowledge, it is a potentially grave risk to national security to have classified documents walk out of the White House and be stored willy-nilly in some random place rather than in the National Archives. But this doesn’t mean any such discovery is a matter for the criminal law.
There is not a shred of evidence that Biden even knew about the misplaced documents, much less that he criminally withheld them. Yet special counsel Robert Hur is now conducting a criminal investigation into Biden’s case. Department of Justice guidelines require someone who has come under public suspicion, including the president, to be cleared or charged promptly. That goes for the president, and Hur is duty-bound, either to develop concrete evidence or shut his fledgling operation down.
The same, of course, goes for any investigation into Pence’s documents. But it would be folly (and I think unlikely) for Attorney General Merrick Garland to appoint a special counsel for Pence with zero evidence that criminal conduct has occurred.
The appointment of Hur immediately lumped Biden together with Trump in the public’s mind. Now Pence’s discovery might shift the politics, since it’ll be hard for House Republicans to distinguish between the two cases. But we can probably be sure that Speaker Kevin McCarthy and company will somehow launch an argument that targets Biden while tacking around Pence.
Given what we’ve seen, there’s no reason to believe the problem stops with Biden and Pence. As in Biden’s case, where some of the documents go back to his years in the Senate, current and former members of Congress could also have classified documents where they shouldn’t be. And for that matter, so might current and former executive branch officials.
Many of these individuals are now probably busy checking their garages and sock drawers. And that’s a good thing. We need to get our hands around the problem and come up with reforms; and officials should do exactly as Pence and Biden did — if they find documents, turn them over immediately to the archives. And of course, if they knowingly withhold them, as Trump did, that willful conduct could subject them to potential prosecution.
We do have a serious problem with the retention of classified documents, but it is not a problem the criminal law can or should solve. We need to patch up porous controls, and we need to prosecute individuals who purposefully steal government documents and obstruct all efforts to get them back. From all that we know now, there is only one person in that category.
