I’m old enough to remember the Watergate Scandal, the Committee to Re-elect the President (CREEP), dirty tricks, and some White House documents Nixon took with him when he resigned. Richard Nixon took a trove of documents home with him and later donated them somewhere and took a whopping income tax deduction.1
Recently Donald Trump defended himself by giving the Nixon example, saying Nixon took records valued at $18 million when he left office and cited the Presidential Records Act.2 There is, however a fatal flaw in Trump’s argument, namely that the Presidential Records Act (1978) did not exist when Richard Nixon took his papers with him. At that time, presidential records belonged to the president. Starting with president Reagan, presidential records belong to the United States. And I’ve never seen any suggestion that Nixon took classified records, only his own papers and the infamous White House tapes. In any case, Nixon was pardoned for everything, known or unknown, he did.
As most know by now, Hillary Clinton used a private email address to conduct official business, and in the conduct of that business a few emails were sent to her that were classified. To put this in context, emails were at that time becoming a regular form of communication. Clinton’s predecessor Condoleezza Rice didn’t use email at all. Colin Powell rarely used it. Clinton used a server of her own to host her emails for some of that period, and a commercial hosting company for a later period.
There were some problems with Clinton’s emails. First, there is a federal records retention statute requiring that official government business records be archived. Clinton believed that her communications with others in the White House and at the State Department, the official emails mixed in with her private ones, would be archived by the White House and State Department servers; however, due to flaws in those systems, many of those emails were not not saved.
The second problem is that a few of those emails were either classified when she received them or contained information that was classified later. Some of those classified emails were improperly labeled. Clinton was of course authorized to have those emails, but her custodianship of them was negligent and careless, and left them open to hacking by those not entitled to them. While there is no proof that Clinton’s server was hacked, some experts think it very possible.
Some make a big deal of Clinton using acid to destroy her server to hide the emails, something that didn’t happen. At the time that Clinton’s private email address was hosted by a commercial company, her office directed the company to purge old emails after some period of time. The hosting company didn’t purge the emails as requested. Later when Congress started investigating, they asked Clinton to preserve any records, and her office contacted the hosting company asking them to retain everything. A technician at the hosting company then realized that he had failed to carry out his earlier instructions, and hurriedly purged the old ones, and erased the disk drive with commercial software called “Bleach Bit.” It’s a commonly used free tool.3
The important thing about the Clinton matter is that a bipartisan Congressional committee investigated the matter in extreme detail, including receiving testimony from Clinton herself and the technician that deleted the emails, testifying under a grant of immunity. They concluded that Clinton was negligent, but not criminal in her actions. That is, an investigation was done, and no charges were found appropriate.
Joe Biden had an office in DC connected with the University of Pennsylvania. When he became president that office was no longer used and it was cleared out. The clean-up discovered some classified records from his term as vice president. Biden’s attorney immediately contacted the National Archives and the records were quickly returned.4 Some additional classified records were discovered by Biden’s staff in his garage at his Delaware home. They also were returned quickly. A Department of Justice investigation determined that the classified records were there unintentionally and that no laws had been broken. It was an honest mistake — a big mistake, but not a crime.
Former vice president Mike Pence found some classified records at his home, and they were quickly returned. Again, the Department of Justice investigated found that the records were moved unintentionally and that no laws were broken.5
Two other cases
Before moving on to Donald Trump, I want to mention two other cases involving classified material. The first is that of a US Navy sailor, Kristian Saucier. For unproven reasons, Saucier took photographs with his phone of engineering areas of the nuclear submarine on which served. Even having the phone on board was against regulations. He tried to cover up what he did by throwing the phone in a dumpster. The phone was retrieved and Saucier was court martialed and received a sentence of one year in prison. Saucier’s case became a cause célèbre for conservatives — if Clinton can do it, so can a US Navy Sailor. Trump issued a pardon to Saucier based on the “Clinton got away with it” rationale.6
The other case involves a Department of Defense executive assistant in Hawaii, who took some documents labeled Classified and Secret home with her. A co-worker came across them at a party at the woman’s home and reported it. She was convicted and received 3 months in prison and a $5,500 fine.7
Both of these knew what they were doing was illegal.
The forty-four page indictment of Donald Trump puts it better than I could, and makes is plain why Donald Trump does not belong in the company of careless and sloppy classified document handlers, but among the criminal ranks of those who intentionally and willfully took classified documents.
I’ll just summarize:
- Trump ordered that classified documents be removed from the White House.
- He refused to return them when requested by the National Archives for many months.
- He intentionally did not return all the documents.
- They were stored at a resort where many people came and went, including foreign nationals. Some were in a bathroom. Some on a stage. Some in a storage room.
- He took some of them with him to his winter home in Bedminster.
- He directed that documents be moved so that an attorney responding to a subpoena for the documents wouldn’t find them.
- He personally went through the documents, and willfully retained some of them.
- He causes false statements to be made to the court representing that all documents were returned.
- He admitted that he knew he had classified documents, and showed them at least superficially to people who had to authorization to see them.
Trump knew what he was doing. He knew it was a crime. But he thought he was a star, and could get away with things others to go jail for. The disheartening thing is that far too many Trump followers agree with him.