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analysis

By storing classified documents at their homes, both President Joe Biden and former president Donald Trump have made themselves vulnerable to federal investigations, special counsels, political opprobrium and late-night cabaret-style television ridicule.Carolyn Kaster/The Associated Press

It seems as if it is raining classified documents in the United States. Or that the offices and homes of American presidents are document cisterns, repositories where state secrets seem to drip in and are collected. And that presidential homes are being treated like crime scenes, with federal officials going room to room in a determined search for contraband.

The weekend disclosure that Justice Department officials conducted a 13-hour search of Joe Biden’s Delaware home on Friday only underlines the fundamental rule of presidential and vice-presidential documents that both the President and former president Donald Trump failed to honour: Like built-in bookcases and fireplaces in a regular house, documents in the White House – to employ a custom from the real estate business – do not become a possession of the last residents. They can’t take them when they move out.

There remain more mysteries than certainties in the twin cases of these documents. The full contents of the documents at Mr. Trump’s Mar-a-Lago home, for example, are not known publicly. Nor is it clear exactly how many of the more than half-dozen documents seized Friday were classified nor how many dated from Mr. Biden’s years in the Senate, from 1973 to 2009.

With Biden facing his own documents probe, power of charges against Trump substantially weakened

But what is known is that none of the material in either home belonged to either president, and that whether by sloppiness or maliciousness, the two men made themselves vulnerable to federal investigations, special counsels, political opprobrium and late-night cabaret-style television ridicule.

Until 1978, when Congress responded to Richard Nixon’s possession of White House documents that were vital elements of court cases, presidents owned their records. This precedent was set by George Washington when he left the presidency in 1797. His successors, John Adams and Thomas Jefferson, knew they were principals in the founding of the United States and jealously guarded their records as hostages to history, seeking to shape their legacies and to craft the story of the country’s beginnings.

There were no presidential libraries until the creation of Franklin Roosevelt’s in 1941, so the custody and curation of the records was in the hands of the former chief executives. Generally their families eventually deeded them to the government.

Though earlier presidents owned classified documents, they understood that state secrets should be subject to safekeeping, and, in fact, documents often actually were kept in former presidents’ safes. “It wasn’t a case of taking the classified documents and putting them in a garage,” said Timothy Naftali, former director of the Richard Nixon Presidential Library and Museum. “The family would set up a system so they could be reviewed before being shared with the public.”

The procedure for assuring the proper handling of documents under current law is clear. The National Archives and Records Administration provides presidents and vice-presidents with archivists who, during the course of an administration, guide White House officials on proper document handling. But the agency lacks enforcement mechanisms. As part of the executive branch of the government – an awkwardness the congressional drafters of the Presidential Records Act neglected to address 45 years ago – it technically reports to the president. In the Trump case, the archivists knew in real time that the Trump staff was not meticulous, or worse, about following its guidelines.

Some of the material in presidential libraries remains confidential. For years, documents about the assassination of John F. Kennedy have been kept secret. After Mr. Biden ordered the release of 13,173 assassination-related records last month, some 150,000 of the original five million documents remain secret. The Kennedy Library and Museum still holds other confidential documents, including materials on nuclear strategy and documents identifying CIA agents and operations. The CIA, FBI, the State Department and other agencies have “equity” in these documents, which cannot be declassified without their assent.

The Trump and Biden cases underline the ambiguities in the system.

When Mr. Biden was leaving the vice-presidency, and when Mr. Trump was leaving the presidency, archivists were dispatched to help pack and sort documents. Customarily the president and vice-president aren’t involved, though Mr. Trump’s possession of correspondence with North Korean leader Kim Jong-un suggests he directed aides to put those records aside for his own use, his motive unknown.

The end of an administration is a chaotic time, especially so for the Trump-Biden transition on Jan. 20, 2021, only two weeks after the Capitol insurrection. “The idea that on Jan. 19 and Jan. 20, archivists can go through all the records is ridiculous,” said Mr. Naftali. “They rely on staff to say they’ve set aside the classified materials.’’

An exception to the document rules is made for presidential diaries, which are regarded as the private property of the president, though only George Washington, John Quincy Adams, James Polk, Rutherford Hayes and Ronald Reagan kept comprehensive diaries. The Reagan diaries were published in 2007, with some information excised at the request of the National Security Agency.

At least one former president has received a classified daily intelligence briefing, sent to him on a secure fax machine and then, in this case, shredded by an aide who possessed a security clearance.

Not until recently has the issue of illegal possession of presidential documents been an issue. One scholar of American presidents is confident most of the Trump and Biden predecessors were diligent in the disposition of documents.

“These guys played by the book,” said Michael Birkner, a Gettysburg College historian who has written on Harry Truman and Dwight Eisenhower. “If they did keep classified materials, we don’t know about it. Eisenhower in particular was so careful about organizing documents and making proper arrangements for them that it seems to me very unlikely.”