Probes into Biden, Trump’s handling of documents prompt questions about what consequences may await them

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Michael Hayden spent four decades as an intelligence officer, a U.S. Air Force general who began his career in 1969 and rose to lead both the National Security Agency and the Central Intelligence Agency. But he has never seen anything like the carelessness and, perhaps, obstructionism that has come to light in recent months, with classified documents found at the homes of Donald Trump and Joe Biden.

“I don’t know of any other presidents,” who have been discovered with similar lapses, Mr. Hayden said in an interview.

“Just the two.”

Even Richard Nixon, who fought to keep possession of his documents and recordings – in hopes of destroying them – after his 1974 resignation was not accused of secreting away classified materials.

It was the controversy over Mr. Nixon’s documents that led to the Presidential Records Act of 1978, which established public ownership over presidential documents – a key legal principle as the U.S. Justice Department scrutinizes how Mr. Trump and, now, Mr. Biden came to have highly sensitive classified paperwork at their homes.

What’s not clear is what consequences, if any, there will be for the two presidents.

On Friday, Republicans in the U.S. House of Representatives launched their own investigation of Mr. Biden’s documents, which were found in two separate locations. A letter from high-ranking Republicans on the House judiciary committee demanded access to information and correspondence related to the case and the appointment of Robert Hur as special counsel by Attorney-General Merrick Garland.

They also asked about the release of information about the documents found in Mr. Biden’s possession, and whether the White House “actively concealed this information from the public on the eve of the 2022 elections.”

The discovery of the papers point to chaotic times in high places, a hallmark of Mr. Trump’s presidency. But Mr. Biden also left the vice-president’s office in 2017 in a state of some disarray, former aides told CNN this week, as he sought to maintain a high tempo of work until his final days.

Both presidents are now under investigation by special counsels.

The recovery of the documents raises questions not just about what took place and why – but about what can be done about it.

“We’re sort of in uncharted water here,” said Mark Lowenthal, the former staff director of the House permanent select committee on intelligence and onetime vice-chairman for evaluation at the National Intelligence Council.

“You’re dealing with a situation where the normal rules about what happens literally don’t apply,” he said. “Not only the fact that there’s no precedent – but there’s no means for doing anything about it that makes any sense.”

Mr. Biden is a sitting president. His access to state secrets comes from voters: Presidents gain the highest levels of security clearance when they win an election. Indeed, presidents do not receive a formal security clearance, which is granted to other government workers after a swearing-in process. Similarly, presidential access is not revoked upon leaving office, since there is no formal clearance to undo.

U.S. legal convention suggests that Mr. Biden has little to fear from other consequences, at least for now.

“While the U.S. has never had the opportunity to test the notion of prosecuting a sitting president, the general understanding has been that such prosecution could only occur once the individual leaves office, whether through impeachment, resignation or election,” said Mark Zaid, a lawyer based in Washington who specializes in the law around security clearances and whistleblowing.

Mr. Trump’s status as a former president similarly means there are complications to the consequences he might face. But prosecutors may look at Mr. Trump’s role in the discovery – and alleged concealment – of classified materials that were eventually seized in an FBI raid on his Mar-a-Lago home.

“The real sin is obstruction,” said Mr. Hayden. “Trump wanted those documents,” he added. “Biden didn’t want those documents.”

More than a million people have classified clearances in the U.S., and sophisticated systems have been put in place to track documents. Mr. Lowenthal, who is now president of the Intelligence & Security Academy in Arlington, Va., likened it to a library that registers which books have been lent, and notes when they are returned.

“There’s a process for doing this. It really shouldn’t be that difficult,” he said.

Such processes can be strained by the country’s top leaders. If an intelligence staffer brings a document to the president or vice-president, they can ask to hold onto it. “You can say no. But you can’t grab it off their desk,” Mr. Lowenthal said.

Still, he too is left puzzled by the documents found in Mr. Biden’s possession, and dismissed the President’s defence that some were kept locked next to his Corvette – hardly a secure spot for sensitive documents.

“Someone should have noticed that these things say ‘secret’ or ‘top secret’ or ‘confidential’ – why didn’t someone notice that and say, ‘these don’t go to the garage in Delaware?’ ”

But, Mr. Hayden said, the presidential document discoveries also point to a larger problem with overclassification, a tendency inside government agencies to stamp materials as secret without real cause. Mr. Hayden estimates that as much as 70 per cent of classified information does not merit the label.

“We do a lot of things that are ‘secret’ and are really not secret,” he added.

Having a bureaucracy awash in classified documents makes such material more commonplace, and complicates the process of keeping track of it. Mr. Hayden hopes that, when the heat of the current investigations begins to cool, the events of the past months prompt a serious conversation about the U.S. government’s approach to secrets.

“You can’t do it now,” he said. “But later on, come on. Let’s do something about this.”