Today, Explained - What’s up, docs?

Episode Date: January 13, 2023

What do a Delaware garage and a Florida palace have in common? We dig into Joe Biden’s classified document mess. This episode was produced by Siona Peterous and Haleema Shah, edited by Matt Collette, fact-checked by Laura Bullard, engineered by Paul Robert Mounsey, and hosted by Sean Rameswaram. Transcript at vox.com/todayexplained   Support Today, Explained by making a financial contribution to Vox! bit.ly/givepodcasts Learn more about your ad choices. Visit podcastchoices.com/adchoices

New year, old news. Last year, we found out the former president had a bunch of classified documents stashed at his Florida palace. This year is only a few weeks old, and now we're finding out the current president has left a trail of classified documents strewn about the eastern seaboard of the United States. First, it was his hardly used office at the Penn Biden Center in Washington, D.C. Then it was his garage in Delaware next to his Corvette. No joke. On Today Explained, we're going to find out what the heck's going on with these old dudes and their classified documents and whether there's some opportunity here to stop classified documents from walking out of the White House. Get groceries delivered across the GTA from Real Canadian Superstore with PC Express.

Shop online for super prices and super savings. Try it today and get up to $75 in PC Optimum Points. Visit superstore.ca to get started. Today Explained here with Andrew Prokop from Vox. Happy New Year. How happy a New Year is the President of the United States having, Andrew? Well, there's been a bit of an unpleasant story for President Joe Biden dominating the news this week. The story broke on Monday.

The next day, Biden started explaining. They found some documents in a box, you know, a locked cabinet, or at least a closet. And as soon as they did, they realized there were several classified documents in that box. And now the Justice Department is looking into whether any laws may have been violated with regards to those documents. What kind of documents are they, Andrew? Do we know what these documents say? What we know is still quite vague. CNN reported that in his office at the Penn Biden Center in Washington, D.C., there were less than 12 classified documents. They say they uncovered fewer than a dozen classified documents at the office, but it's unclear what they pertain to or why they were in this office. And that is pretty much all we know about what they are at this point. And the ones in his garage in Delaware?

We don't know anything about those. Do these locations where these documents were found, Andrew, tell us anything about what may have transpired here. One, almost an honorary office the president had. And the other, his garage in Delaware. One sounds like it could be almost nefarious and the other sounds a little banal. But who knows? So the explanation that's being put out on background by the Biden team is basically that at the end of his vice presidency, as he was preparing to vacate the office, there's always a frenzied effort to pack up certain documents and that this may have just been a mix up from aides packing documents. They were put in boxes,

sent various places. Some got sent to the office he had soon got set up with UPenn. Some got sent to his house. But that like there was no plotting here or anything like that, that it was just just all a mistake. And Biden himself had said that said publicly that he was surprised to learn that those documents were there and that he has no idea what they are. I was briefed about this discovery and surprised to learn that there were any government records that were taken there to that office. But I don't know what's in the documents. My lawyers have not suggested I ask what documents they were. We the public are learning about these documents this week. But when did the Biden administration or the president himself learn about these documents?

So the timeline dates back to November, just before the midterm elections. And according to Biden's team, they were preparing to vacate this office, which it's in D.C., but it was set up for Biden, basically a center established by the University of Pennsylvania after Trump became president. We learned that they were in the process of closing out a Washington, D.C.-based office that Biden used when he worked as an honorary professor from about 2017 to 2019. Biden's team notified the White House, which notified the Justice Department and Attorney General Merrick Garland. This is back in November, assigned a U.S. attorney who had been a holdover from Trump's administration to look into the matter and determine whether a special counsel would be necessary to investigate this further. Back in November, something else happened in November, Andrew. The midterm elections, was this not announced to the public then out of convenience for the Biden administration? When it comes to late breaking announcements about highly charged political investigations before the midterm elections, the Justice Department actually has policy about it. They're not supposed to do it.

They, James Comey somewhat violated that when he made his announcement in 2016, a week before the Trump Clinton election. I'm here to give you an update on the FBI's investigation of Secretary Clinton's use of a personal email system during her time as Secretary of State. But since then, there's been a pretty strict understanding at DOJ that they're not supposed to, you know, when situations are developing, information is fast moving, that like running out in public and announcing they have an investigation all of a sudden isn't something they should be doing. And of course, all of this sounds a little reminiscent of another president who couldn't help but take some documents home. How are these

cases similar? How are they different? Well, that's what's looming over this entire thing. The similarity with the Trump investigation into mishandling classified documents. When FBI agents searched Mar-a-Lago, they found top secret documents and dozens of empty folders marked classified inside former President Trump's personal office. Former President Donald Trump's legal team is preparing to respond to the Justice Department's appeal of the special master ruling. The DOJ arguing that classified documents taken from Mar-a-Lago are not Trump's personal records and delaying the investigation will impact national security. From what we know now, the difference is the number of documents. We're talking about hundreds for Trump and it's not clear exactly how much, but a rather smaller number for Biden. Then you have the issue where, you know, Trump didn't want to give these back. He knew he had them and he didn't want to give them back. Trump offered a new excuse for taking classified documents.

He said he wanted them for his presidential library. We are similarly in the dark about what exactly both the Trump and Biden documents were, but there has been some reporting from the Washington Post that Trump had some very sensitive documents involving intelligence about Iran and China that could expose sources.

And Biden had some intelligence documents, also about Iran in one case, apparently, but there's been less reporting about what exactly they were and how sensitive they are. One difference here, Andrew, as you might recall, is that it took Merrick Garland a long time to appoint a special counsel to investigate the former president. It seems to have not taken much time at all to appoint a special counsel to investigate the sitting one. How come? Once Trump was under investigation and had this special counsel going for this specific issue,

for the same issue to arise about Joe Biden and for Garland not to appoint a special counsel would have been probably difficult to justify. People in these top Justice Department roles are often concerned about the perception of bias, and he wants to make sure there is no perceived bias. So that's why it was probably a pretty clear-cut decision for him. I signed an order appointing Robert Herr a special counsel for the matter I've just described. The document authorizes him to investigate whether any person or entity violated the law in connection with this matter. I would add, though, that one thing we're missing is that we don't really know what the initial look at this from the U.S. attorney found.

We don't know what facts Garland had and what perhaps influenced his decision to do this. It could have been purely a concern about possible bias, and he doesn't think the facts look so bad at all. Or maybe he does think there's something a little concerning about the facts that have been uncovered so far. And I would add that Biden, as the sitting president, cannot be indicted right now. That's the Justice Department's understanding of the law. What is up with these presidents walking away with these documents, Andrew? Should we just assume this is happening in every administration? Overclassification has been a pretty consistent problem with the U.S. government. It's been widely discussed. There's been talk

about it with regards to, you know, the investigation that embroiled Hillary Clinton as well about her personal email server, whether some of the purportedly classified information that went on to her personal email was kind of maybe not what we might think is the nation's most sensitive secrets. Of course, there have been other classified information scandals involving more deliberate wrongdoing in the past. General David Petraeus, who was Obama's CIA director, gave information to his biographer and lover. General James Cartwright under the Obama administration gave information to a reporter. And so, you know, there have been investigations of such things in the past.

But generally what they're looking for is deliberate knowing wrongdoing. If it's something like a mix up, they're probably not going to recommend criminal charges for it. And that's what they're trying to establish right now. But we can assume to hear so much more about this in the coming weeks, months, and who knows, maybe years. Well, the House Republicans are certainly going to try to press it to this further. They're going to look for any potential double standard that they can argue exists. Once we get this information and digest it, then we'll go from there. I'm not saying we're going to open a full-scale investigation, but we have questions. You know, there is a fair amount we still don't know about what exactly happened here.

And there are possibilities about what this was. And you know, it's possible that if there is a look into this from the new special counsel, that they will find that this was pretty much just a mix-up and that there was nothing else to this from Biden and that maybe he was a little sloppy, but it's certainly not deliberate criminal wrongdoing. We'll surely be hearing more from Andrew Prokop on Today Explained as this story develops. For now, that's all, though. More on why this keeps happening and how we can stop it

and why we should stop it when we return. digital photo frame by Wirecutter. Aura frames make it easy to share unlimited photos and videos directly from your phone to the frame. When you give an Aura frame as a gift, you can personalize it, you can preload it with a thoughtful message, maybe your favorite photos. Our colleague Andrew tried an Aura frame for himself. So setup was super simple. In my case, we were celebrating my grandmother's birthday and she's very fortunate.

She's got 10 grandkids. And so we wanted to surprise her with the Aura Frame. And because she's a little bit older, it was just easier for us to source all the images together and have them uploaded to the frame itself.

And because we're all connected over text message, it was just so easy to send a link to everybody. You can save on the perfect gift by visiting aururaFrames.com to get $35 off Aura's best-selling Carvermat frames with promo code EXPLAINED at checkout. That's A-U-R-A-Frames.com, promo code EXPLAINED. This deal is exclusive to listeners and available just in time for the holidays. Terms and conditions do apply. And no matter your team, your favorite player, or your style, there's something every NBA fan will love about BetMGM.

Download the app today and discover why BetMGM is your basketball home for the season. Raise your game to the next level this year with BetMGM, a sportsbook worth a slam dunk and authorized gaming partner of the NBA. BetMGM.com for terms and conditions. Must be 19 years of age or older to wager. Ontario only. Please play responsibly. If you have any questions or concerns about your gambling or someone close to you, please contact Connex Ontario

at 1-866-531-2600 to speak to an advisor free of charge. BetMGM operates pursuant to an operating agreement with iGaming Ontario. What's in the box? Today Explained, we're back here with Steve Riley from Grid, a startup news organization here in Washington, D.C. Steve, we had the Mar-a-Lago raid over classified documents.

Now we've got President Biden's lawyers turning in his classified documents that were at an office in University of Pennsylvania or a garage in Delaware. It seems like this is happening a lot, that presidents or vice presidents are walking out of their offices with important documents. How common is this phenomenon? I spoke with a former top official at the National Archives about this very question, about how often this is in light of the revelations last year about former President Trump and this week about President Biden. What he told me was that at all levels of government, it's not necessarily an uncommon occurrence to have what they call a security violation where classified records are accidentally or inadvertently

intermingled with unclassified records and end up leaving the secure environments in which they're supposed to be maintained. Comforting. But there are perhaps what could be comforting here is that there are procedures that are supposed to be followed when this does happen. For instance, this top official, former top official at the National Archives, told me an anecdote from his time in office where a staffer had accidentally stapled a classified document to his itinerary for a trip. And he found this classified document in his briefcase when he arrived at the hotel.

And he told me there is a process to follow when that happens. You notify your security official, you keep that document in your possession, and there's a procedure for that. And so mistakes do happen. These are human beings and there are ways to deal with those as they occur. Obviously, in the Trump and Biden cases here, they're unique in that they are not everyday bureaucrats. They're dealing with higher levels of secure information. They're the former president, obviously, and former vice president, current president. And it was not just one document in Trump's cases. It was hundreds of documents.

And in the case of Biden, we don't know exactly how many yet, but multiple records were at play. So this is one thing we expect both special counsel Jack Smith in the Trump case and special counsel Robert Herr in the Biden case to be looking at is how these mistakes happened or were they mistakes and were proper procedures followed once it was discovered that these classified records had left their secure environments. Well, let's talk about how these procedures are supposed to work just inside the White House for a moment here, since you've reported on this.

I mean, obviously the president's the most powerful person in any room, but what about the vice president? Should, like, Obama have been there saying, Joe, no, don't take those documents? Come on, man! Well, the rules are for handling classified documents. It's actually a kind of complicated constellation of federal statutes, regulations, and executive orders that guide the process. And one of the main safeguards is the Presidential Records Act, which is supposed to detail how records are disposed of, how they're maintained. It requires the White House to work

with the National Archives on retaining and properly securing classified records. Additionally, the president and the vice president have the same declassification authority under the law. So the president and the vice president should be theoretically operating under much of the same processes and procedures and requirements. There was a historical footnote that bears mentioning here in which there was a dispute with the National Archives and former Vice President Dick Cheney over whether the Presidential Records Act applied to the vice president. The vice president Cheney's office argued that because the Constitution makes the vice president president of the Senate, that the Presidential Records Act didn't apply to the vice president.

And that's possibly notable still because that dispute was never resolved. So that's something we may be hearing a little bit more about if this Biden classified records situation continues to gather steam. Interesting. Tell us more about the Presidential Records Act, because that seems like it's going to be pretty important, too. So the idea that presidential records belong to the people of the United States and not to the former presidents personally, is actually a relatively new one. For the first two centuries of the nation's history,

presidential records were considered the personal property of the president once he left office. Congress enacted the Presidential Records and Materials Preservation Act in 1974, following the Watergate scandal. And I think, too, that I could say that in my years of public life that I welcome this kind of examination because people have got to know whether or not their president's a crook. Well, I'm not a crook. Presidential records were not considered government property until 1978 when Congress passed the Presidential Records Act. And the Presidential Records Act states that upon the conclusion of the president's term,

The Archivist of the United States has given the responsibility for the custody, control, preservation, and access to these presidential records. So in other words, this is a relatively new idea, and we're still working out some of the intricacies of it, apparently, from what we've seen in both the case of former President Trump and President Biden.

So given, Steve, that we have at least two cases here, two administrations in a row where classified documents are growing legs and walking out of the White House, is there a problem with the Presidential Records Act? Experts I spoke with about the Mar-a-Lago situation and the Biden situation described what amounts to a president-sized hole in the White House system designed to protect secret records. Notably, the Presidential Records Act includes no enforcement mechanism, and that's something that experts and advocacy groups have argued for years needs to change, even before we knew about these revelations. Some experts I spoke with said they're hoping this renewed attention on document preservation might help spur some lasting reforms. One thing experts mentioned is possibly eliminating a provision in the Presidential Records Act, which allows the president to decide what's personal and what is government information. Another idea that's been floated is real-time reporting from the White House to the National Archives regarding an administration's records preservation policies. So these are things that flew under the radar for decades before the last six months,

what transpired. And now we're getting a lot of renewed attention and a lot of advocates and transparency experts are glad to see it. And as Andrew mentioned earlier in the show, there's going to be a lot of attention on what exactly happened here as it pertains to President Biden from Congress, the House of Representatives, obviously newly run by Republicans. Do we think any of that added attention might actually lead to a strengthening of the Presidential Records Act? Or is that too, I don't know, productive for this Congress? If there's ever been a time for that, it's now. It's clear that this problem of classified records leaving the White House at the end of presidential administrations has the attention of Congress. It has the attention of both parties of Congress. We saw

Democrats in Congress were alarmed by this issue last year, and now Republicans are expressing concern about problems with classified records leaving the White House at the end of an administration. So we might have a rare moment of bipartisan accord where we see a problem that needs to be addressed. So that's definitely a conversation I expect this Congress will be having as we go forward. And just for the fun of it, Steve, I wonder, you know, for people who hear these stories about Trump and his documents and Biden and his documents, and they're just like, who cares? They're just some documents. It's not like they're the codes to the nukes or whatever. Why does it matter that presidential documents, that documents from various administrations,

don't leave the White House or the National Archives? It's important to remember that these documents are classified in the first place because they would be of value to potential adversaries if they were to see them or come into possession of them. That's the whole purpose of the classification system. These are documents designated to be especially sensitive and needing security. And they may have information about nuclear secrets that we don't want to be shared with other governments. We don't actually know, you know, the extent of the sensitivity of these records in either the Trump or the Biden cases, although we know a lot more about Trump's Mar-a-Lago documents. And there were some

extraordinarily sensitive documents stored in what appears to be a secure storage facility at a resort where people were coming and going and there's all sorts of activity. And also in the case of President Biden's garage, that was obviously not secured in the way you'd want to secure sensitive records that would be valuable to a foreign government. So this is incredibly serious in every case where sensitive information leaves a secure environment and comes into a storage facility somewhere where it shouldn't be. Steve Riley is with Grid News. They write a lot about politics, but also other things. You can find them at grid.news.

This is Today Explained from Vox.com. Our program today was produced by Siona Petros and Halima Shah. Matthew Collette edited. Laura Bullard fact-checked. And Paul Robert Mounsey mixed and mastered. Thanks to Noel King for helping us ideate on this one, Avishai

Artsy for naming the episode, and Andrew Prokop for self engineering his interview in our studio all by himself. What a trooper. For all our podcast people, we are off Monday for Martin Luther King Jr. Day. For all our podcast people, we are off Monday for Martin Luther King Jr. Day. For all our radio people, we're cooking up something special for you.

Bye. you