Trump's is much more alarming.
 | By John Guida Senior Staff Editor, Opinion |
Is there any meaningful difference between the classified records cases of Joe Biden and Donald Trump? The question has been at the center of national sniping since Attorney General Merrick Garland named a special counsel to look into the Biden case. That move established a sort of symmetry between the Biden and Trump affairs. |
As he puts it, Biden's "mishandling of a limited number of classified files, which upon discovery were promptly turned over to the National Archives and proper authorities, should make the reasoning, and necessity, of prosecuting Mr. Trump all the more clear." |
In a brief conversation, I asked Garrett to dig a little deeper into the issues around classified documents and why they are key to our history and identity. |
John Guida: You write in the guest essay that broadening the scope of classified document cases to include previous ones involving Alberto Gonzalez, David Petraeus, Sandy Berger and Hillary Clinton reveals a distinct difference of two types. You say that Biden's case falls into one, and Trump's the other. |
Garrett Graff: Prosecutors have to consider when bringing charges how similar defendants have been treated. One of the challenges that the F.B.I. and the Justice Department had in 2016 in looking at Hillary Clinton's emails case was how light of a criminal charge David Petraeus faced after he'd given classified intelligence to his biographer and lover; the Justice Department considered bringing felony charges, but he ended up in 2015 pleading guilty to just a misdemeanor. The Petraeus case was far more egregious than Clinton's, and he still faced the equivalent of a slap on the wrist. That made it much harder for the Justice Department in 2016 to consider Clinton's emails worthy of a criminal charge. So far as we know, Biden's case is arguably much more on the Clinton end of the equation than the Petraeus end. |
And we also have to remember that not every incident when classified materials are mishandled is criminal — many of those problems are dealt with administratively. Maybe there would be an inspector general review, maybe you'd have your security clearance reviewed, suspended or revoked. For an incident to rise to a criminal level, there usually has to be either gross negligence, a willful intent to retain documents you're not allowed to have, or, for instance, you give them to someone who is not supposed to have them. |
J.G.: You write that any fight about classified material is at heart a fight over who controls America's history. Can you say more about that connection? |
G.G.: America has a huge overclassification problem — the government classifies too much, and at too high a level. That makes it hard to share information inside government and with trusted local, state and foreign partners. It's also a pretty serious issue for historians and for citizens, because it means that it can be decades — sometimes even a quarter- or a half-century — before key documents are declassified and released to researchers and historians. |
When I wrote my history of Watergate last year, one of the revelations I explored deeply was the 2011 release of documents from the L.B.J. Presidential Library that showed Richard Nixon interfered in the Paris peace talks regarding the end of the Vietnam War while he was a presidential candidate in 1968 — documents that had been locked away for decades, even though they showed what are some of the most credible allegations of what even Lyndon Johnson suggested could be seen as treason regarding a U.S. official in the 20th century. Johnson knew in 1968, and then the classified documents were hidden away in his library until long after the major figures were dead. |
The overclassification of documents helps politicians and officials avoid accountability for their actions. |
J.G.: You note that the Watergate special counsel Leon Jaworski was in the potential position of charging an ex-president. Any idea how he was approaching that or thinking about it? |
G.G.: In the period between when Richard Nixon left office in August 1974 and when Gerald Ford pardoned him about a month later, there was a real question of whether Jaworski would bring charges against the former president. "Do you think people want to pick the carcass?" Nixon asked a confidant one day. |
Inside the special prosecutor's office they called it the "monkey problem," as in, who would settle the question of the monkey sitting on everyone's back? No one wanted to be the one who settled Nixon's fate. They even put up posters of the movie "King Kong" in the prosecutor's office. The staff believed that justice required moving forward with prosecuting the president, but many in Washington were worried about the precedent of a former president spending years on trial — and potentially even going to prison. Finally, Gerald Ford settled the question for everyone. |
One of the most interesting what-ifs of American history is how different our political trajectory would have been had Nixon been prosecuted and sent to prison — how would Iran-contra, the Clinton scandals and the Trump era have played out differently if America had a precedent of charging presidents for criminal acts in office? |
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