Well, that muddies is the waters even more.

I wonder if both the Clintons and George Bush are having bonfires right now
#4 | POSTED BY EBERLY

I heard on the news this morning that classified documents expire after 25 years. If that is the case, then Clinton and Gore are likely in the clear. Bush and Cheney not quite.

#8 | POSTED BY JPW

I agree with everything you said. It muddies the waters, IMO, for Republicans in the House trying to make a big deal of and wanting to investigate Biden having classified documents. Are they now going to excuse Pence as well as Trump while trying to hold Biden's feet to the fire?

"Obama is up next. I am actually surprised they didn't go after him before Mike Pence."

From what I understand, no one "went after" Pence. Like Biden did, Pence had his lawyers look for classified docs, they found some and volunteered to turn them over. But, yes, Obama should have his lawyers checking for classified documents too.

#15 "Automatic declassification is the declassification of information based upon the occurrence of a specific date or event as determined by the original classification authority; or the expiration of a maximum time frame for the duration of classification established under the Order (25 years)."

The person I heard speaking on the topic was suggesting that the 25 year expiration date be changed to 10 years. But that does bring up a question I've been having: mightn't some of the classified documents Biden, Pence and Trump have already been declassified (and not through Trump magically declassifying them with his mind)? Isn't that what happened to some of the classified info Hillary had on her server?

Perspective:

How Many Documents Are Classified Each Year?

Most practitioners and observers would say too much. Some estimates assess that as many as 50 million documents or more are classified each year.

The number appears to have grown incrementally in the last 20 years between the proliferation of technology in the Information Age that can generate classified information as well as the two-decade period in which the U.S. waged active wars in Iraq and Afghanistan while also defending against threats from nation-state actors across the globe.

Beyond the clear procedures for generating classified information, the practical realities for protecting it by presidents and down the chains of command are not always clear.

Accidental leaks, including when the staff of a retiring senior leader transports bulk documents from a secure facility into storage, happen so regularly that the National Archives has a startlingly matter-of-fact set of instructions for such instances on its public website " aligned with the actions reportedly taken by members of Biden's staff when they believed they had made such a discovery at his archive and his private residence.

it's is probably routine for people working in high levels of government to misfile or act carelessly with respect to classified documents. - Joe
No it's not.
As a senator you have to go to special rooms, removing all electronics.
They give you the docs, and you give it back, then you can leave.
#27 | POSTED BY ONEIRONAUT

That seems to be the case with Top Secret documents, but not all classified documents fall into the Top Secret category:

The most sensitive documents are Top Secret Codeword documents. Almost every product of the National Security Agency is Top Secret because the Agency engages in intercepting and decoding sensitive communications of foreign countries and individuals.

Also highly classified are documents regarding operational activity of human intelligence collection (spies) by the Central Intelligence Agency (CIA) and the various military intelligence services. The raw intelligence produced by such means is usually classified SECRET, but occasionally a sensitive case will be TOP SECRET. In very sensitive cases, the originator will specify by name who can read the report.

TS (Top Secret) material must be stored in a SCIF office which stands for (Sensitive Compartmented Information Facility). Only personnel with a TS clearance can enter the SCIF. When not in use, the room is locked. Presidents often have a temporary SCIF on their property or vacation homes. Presidents and VPs travel with a large communications team so they are always in constant contact with the Situation Room including when abroad.

Most State Department cables are SECRET. Some are CONFIDENTIAL, the lowest classification. Many of the most sensitive State documents are marked NODIS, which stands for No Distribution, meaning that they can only be read by a named individual or by selected positions.

Not all classified documents are created equal. We need to know more about the Biden and Pence docs:

Classified material is not just one big category. We know from the Trump investigation that he had a lot of Top Secret and Top Secret/Sensitive Compartmented Information--in other words, the big stuff, the crown jewels stuff.

We don't know just what was found in Biden's or Pence's homes. But it seems very likely that we're talking about what are essentially briefing papers down at the confidential level. That's not a non-issue. Whether the U.S. government over-classifies in general isn't relevant. These are the rules and especially those at high level of power and responsibility should follow those rules. But those kinds of documents are the kind that would not be surprising to find occasionally interspersed with the vast amounts of paper records vice presidents and senators accumulate over the years.

In any case, the relevant point here is that this distinction has really been elided in most press coverage and it shouldn't be.

The statute governing the mishandling of classified material establishes criminal penalties for "gross negligence." Comey's May 2, 2016, draft stated that Clinton had been grossly negligent in handling classified information.

I'm not sure "gross negligence" is the standard.

WHY INTENT, NOT GROSS NEGLIGENCE, IS THE STANDARD IN CLINTON CASE

Here's Strozk's latest on classified documents, in which he also talks about the Hillary Clinton case:

What the hell

Look, mishandling of classified information is serious business. I spent the better part of my career investigating it. Mishandling classified information - as opposed to, say, espionage, in which a person deliberate provides national defense information to a foreign power - is frequently unintentional. But even inadvertent mishandling has the potential to put sources, methods, and technologies at risk (things like human sources operating in hostile countries, sensitive collection sensors on a satellite, or a cutting-edge military technology).

The thing is, unfortunately, mishandling of classified information goes on all the time. All the time. On a daily basis somewhere in the federal government, someone accidentally inserts classified information into an unclassified email, or takes home a stack of paper which has some classified in the middle of the pile, or misplaces a briefcase with classified information in it on the metro or at a conference. You get the idea. When I was the head of the FBI's Counterespionage Section, on a monthly basis, if not more, we'd get calls from various agencies telling us they'd come across a scenario like I just described, asking us if we would open a case. The subsequent discussion inevitably centered around one critical question: what did they know about the intent of the person who had mishandled the classified information?

Did the person intentionally and willfully mishandle it, e.g., had they repeatedly had mishandling violations, were they warned, counseled, and/or punished for them and nevertheless continued to do so?

Was there a massive amount of it (I'm not talking about tens of documents - I mean tens of thousands or more, Chelsea Manning or allegedly Edward Snowden amounts of material)?

Did it involve a party, like a foreign power or the media, that would indicate some sort of disloyalty to the US? (I'm not going to dive into a discussion about whether or not leaking classified information to the media can ever be proper. My view? There are appropriate avenues for whistleblowing. If you nevertheless feel a need to leak, great, but be prepared to pay for that self-decided altruism with jail time if a jury of your peers decides it's merited.)

Did the person try to impede the investigation - did they lie, destroy evidence, etc?

RE Clinton from the above article:

In his July 5th, 2016 speech announcing the results of the FBI's investigation into former Secretary of State Clinton's use of a private email server, Director Comey did an excellent job of succinctly laying out when (based on a review of every time the Department of Justice had charged someone with mishandling classified information): "In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice." I know the decision to make speech remains contentious - but if you can set the conduct aside, the actual content of how the FBI and DOJ think about mishandling cases is and remains accurate and helpful.

#55 Comey flat-out lied. The statute is clear. She was guilty.
#57 | POSTED BY BELLRINGER

From article cited in #53:

The issue of mens rea, or intent, is not as simple as it seems on the surface, and intent is the correct standard. Comey was right not to recommend filing charges and to base his decision on the absence of evidence that Clinton had the necessary intent.

Section 793(f) makes it a felony for any person "entrusted with ... information relating to the national defense" to allow that information to be "removed from its proper place of custody" through "gross negligence." On its face, the law does not appear to require intent, but it turns out the key phrase in 793(f) is not "gross negligence." The key phrase is "related to the national defense."

Section 793(f) is a subsection of the Espionage Act, a controversial statute enacted during World War I in order to combat efforts by German agents to undermine the American war effort. The Act has been amended and renumbered many times, but its core provisions have not substantively changed. The Espionage Act has only sparingly been used to file criminal charges, but when it has been used it is often in high-profile cases. Eugene Debs was jailed under the Espionage Act for anti-war activities during World War I. The Rosenbergs were charged under the Espionage Act when they sold nuclear secrets to the Soviet Union. More recently, both Chelsea Manning and Edward Snowden were charged under the Espionage Act for providing classified material to WikiLeaks.

MFA:

The Espionage Act was left on the books, however, in the years after the war it was used only sparingly. When it was used, it was often controversial because it resulted in prosecutions that civil libertarians believed infringed on press freedom and the right to political protest. Perhaps the most famous of these cases is the prosecution of Daniel Ellsberg for leaking the Pentagon papers The courts too grew wary of the Espionage Act and as a result their readings of it narrowed the scope of the law and limited when it could be used.

This helps provide context as to why James Comey insisted that intent was required to satisfy the requirement of 793(f). Even though the plain language of the statute reads "gross negligence," the Supreme Court has essentially rewritten the statue to require intent to sustain a conviction.

In Gorin v. United States (1941), the Supreme Court heard a challenge to a conviction of a Navy intelligence official who sold classified material to the Soviet Union on Japanese intelligence operations in the United States. In that case, the defendant was charged with selling information "relating to the national defense" to a foreign power. The defendant argued on appeal that the phrase "relating to the national defense" was unconstitutionally vague, so much so that the defendant was deprived of the ability to predetermine whether his actions were a crime.

Justice Stanley Reed wrote the majority opinion and disagreed that the law was unconstitutionally vague, but only on the very narrow grounds that the law required "intent or reason to believe that the information to be obtained is to be used to the injury of the United States." Only because the court read the law to require scienter, or bad faith, before a conviction could be sustained was the law constitutional. Otherwise, it would be too difficult for a defendant to know when exactly material related to the national defense. The court made clear that if the law criminalized the simple mishandling of classified information, it would not survive constitutional scrutiny, writing:

The sections are not simple prohibitions against obtaining or delivering to foreign powers information ... relating to national defense. If this were the language, it would need to be tested by the inquiry as to whether it had double meaning or forced anyone, at his peril, to speculate as to whether certain actions violated the statute.

In other words, the defendant had to intend for his conduct to benefit a foreign power for his actions to violate 793(f).

Without the requirement of intent, the phrase "relating to the national defense" would be unconstitutionally vague. This reading of the statute has guided federal prosecutors ever since, which is why Comey based his decision not to file charges on Clinton's lack of intent. This is also why no one has ever been convicted of violating 793(f) on a gross negligence theory.

I know: too many words. But apparently it's complicated and only one person has ever been charged with gross negligence under 793(f), and as you can see in the article, the case wasn't remotely like anything Hillary did.

That's not what happened. They realized they had a problem and tried to sweep it under the bus. When the lawyers "discovered" the documents they didn't turn them over to the DOJ. They turned them into friendlies at FARA with the hope it would never reach the public. The IG blew that gambit up.
#72 | Posted by BellRinger

That's the same thing Trump did. NARA took a lot longer to contact DOJ in his case though:

January 17-18, 2022: After a series of requests to return original presidential records which began at least as early as January 2021, NARA recovers 184 documents containing over 700 pages bearing classification markings. A month later, on February 18, NARA notifies DOJ of the material marked classified, and nearly two months later, on April 11th, the FBI asks NARA for access to the material.

vs

November 2, 2022: Biden's attorneys discover approximately 10 documents with classification markings in a locked closet in the Penn Biden Center office in Washington, DC. The documents are immediately turned over to the National Archives and Records Administration (NARA), who quickly inform DOJ two days later. On November 9th, the FBI begins an investigation, and on November 14th, AG Merrick Garland assigns John Lausch, the outgoing US Attorney for the Northern District of Illinois, to determine if appointing a Special Counsel is merited.

Pence did the same thing, so maybe that is the protocol:

Pence asked his lawyer with experience handling classified material to conduct the search of his home out of an abundance of caution. Sources said that the attorney, Matt Morgan, began going through four boxes stored at Pence's house last week, finding a small number of documents with classified markings.

Pence's lawyer immediately alerted the National Archives, the sources said. In turn, the Archives informed the Justice Department.

Unless you are wanting to claim Pence isn't fully cooperating because he, too, contacted NARA instead of DOJ?

Sticks and stones may break my bones, but schticks will never hurt me.

#98 Troll.

BTW, Bellringer and your trolling deflections are duly noted.