In 2022, a woman named Asia Janay Lavarello, a civilian employee of the Defense Department, took materials that included classified documents to both her home and hotel room to help write a thesis project she was working on. She was fired, fined, and sentenced to three months in prison.
In 2021, Izaak Vincent Kemp, a contractor with the Air Force, was found to have 112 classified documents among the papers in his home, “[d]espite having training on various occasions on how to safeguard classified material.” He was sentenced to a year in prison. In 2017, a man named Weldon Marshall was sentenced to three years in prison for having classified documents on a disc from his time in the Navy.
There are hundreds of similar examples.
None of these people, as far as I can tell, attempted to sell state secrets to the Russians or the Chinese. Most had merely mishandled documents for personal reasons — perhaps even accidentally. But the Espionage Act (or Presidential Records Act) does not offer a pardon for cooperating with authorities or for having good intentions or for making mistakes.
Those who break laws governing classified documents are subject to strict liability because it’s the mishandling, not the motivations, that matter. Hillary Clinton wasn’t selling top-secret documents when using her illegal private server, but she should have known there was a high probability that foreign governments would be able to hack them. Which is why her disregard for the law was worse than any other official in memory.
Anyway, these laws have long been arbitrarily enforced. If you’re a political official sworn to uphold the nation’s laws, you’re probably going to be fine. If you’re some technocrat at the Pentagon, on the other hand, your life might be destroyed. But, thanks to Merrick Garland, we have some new standards to ponder.
Yesterday, we learned that former Vice President Mike Pence notified Congress his lawyers had found “a small number” of documents bearing classified markings in his Indiana home. The former vice president’s aides also found White House records that had not been logged with the National Archives.
Recall that after the FBI raided former President Donald Trump’s Mar-a-Lago home, ABC News asked the always-principled Pence if he had also taken classified documents from the White House. “I did not,” responded the former vice president. When David Muir asked him if there was “any reason for anyone to take classified documents from the White House,” Pence responded, “There would be no reason.”
Our partisan AG Merrick Garland probably wishes he had thought about the precedents he was setting when raiding an ex-president and potential presidential candidate’s house. Though, one certainty of the “Trump era” is that Democrats always overreach. What justification does Garland possibly have to let any high-profile politician function under the honor system moving forward? Why shouldn’t there be a special counsel to investigate Pence, as there is for Trump and President Joe Biden? When will the FBI search his home?
When Trump was tussling with the National Archives and DOJ over classified documents, the media ran a slew of pieces stressing the incredible seriousness of these potential crimes, noting that hundreds of people had been imprisoned or fined for similar acts. I mean, even the former Republican vice president says there was “no reason” for documents to be removed. Of course, the tone of coverage dramatically shifted when we learned that Biden had also hoarded classified documents, not just from the Obama administration but from his Senate years, storing them in boxes in his “think tank,” home, and garage. The Democrat-friendly media began grappling to find reasons why the two cases are completely different (they aren’t).
What these incidents do show us is that the system in place is a joke. If copies of documents vital to national security are being transferred to the garages of elderly men in Florida, Delaware, and Indiana, without anyone even noticing in D.C., it means there is a complete lack of serious oversight. And if those documents are just keepsakes and knickknacks, old news and letters, taken to help write memoirs and such — as some people argue — then why aren’t they declassified? Experts say there are probably more than 50 million documents classified every year, though we don’t know because the White House doesn’t keep records — and even if it did, it probably wouldn’t tell us.
The central problem with overclassifying isn’t that politicians are inconvenienced, but rather that it points to a dangerous lack of transparency and thus accountability. Just recall the FISA warrants abuses we do know about. Imagine the ones we don’t.
Judging from history, a significant portion of classified and hidden material remains so to protect the reputations of institutions and officials and politicians. There are still 14,000 classified documents related to JFK’s assassination locked up by the National Archives. What possible reason could there be to hide them?
The University of Delaware has yet to release Biden’s Senate papers, and Barack Obama still hasn’t digitized his presidential records. Fact-checkers seem quite certain that former president doesn’t have any classified documents in his possession. Color me skeptical.