Three potential outcomes of the wider classified documents probe

Recently, the American public and the world have had front-row seats to the challenges that our highest-ranking elected officials have faced with their unauthorized possession of classified documents that they obtained during public service. 

The press has closely covered the varying circumstances of how the National Archives and Records Administration and U.S. Department of Justice became aware of the possession of such documents by President Trump, President Biden and — as of last Tuesday — former Vice President Mike Pence. In a historically unprecedented move, the attorney general determined that it was in the public interest to appoint two special counsel to investigate both our current president and former president in parallel.

What happens next? On the investigative front, only time will tell. Investigations of this sensitivity tend to be meticulous and methodical. From a big picture perspective, three takeaways come to mind.

First, in all likelihood, President Biden, President Trump, and Vice President Pence are not the only high-ranking officials who had or continue to possess classified documents in an unauthorized manner. In acknowledgment of this premise, the National Archives sent a letter last Thursday to representatives of former presidents and vice presidents to “re-check” their files to ensure that material thought to be personal does not “inadvertently” contain classified documents and presidential records. Some former or current officials — not just presidents and vice presidents — may have already hired outside counsel to audit their personal papers to identify whether they are in possession of classified documents at their homes or places of business. It is possible that some may have already disclosed their unauthorized possession of classified documents to the National Archives like Vice President Pence did but without the public’s knowledge. 

Though all signs point to the FBI and DOJ’s National Security Division investigating the circumstances of each new discovery, the depth of those investigations could vary, especially if a stream of officials ask the National Archives for assistance in retrieving classified documents from private locations against a backdrop of scarce investigative resources. There is no obligation under federal law for the National Archives or DOJ to publicly disclose instances of unauthorized removal or possession of classified documents. Even if the word gets out, now is an ideal time to audit and potentially disclose because there appears to be political cover to do so, regardless of party affiliation.

Second, now that Pence has come forward, the respective special counsels Attorney General Merrick Garland has appointed to investigate President Biden and President Trump will be cognizant of the fact that classified documents problems are no longer isolated incidents. They and Garland might consider that fact as they weigh whether “the fundamental interests of society require the application of federal criminal law” under Justice Manual, 9-27.000 – Principles of Federal Prosecution. To be certain, the stakes remain high because the “unauthorized removal and retention of classified documents or material” is a federal crime, as is obstructing justice, along with making false statements in “any matter within the jurisdiction” of the executive branch.

Third, there could be a deeper executive and legislative inflection point as to the state of classification policy. There could be concerted congressional and executive branch efforts to reform the criteria for and process of classification and declassification, the overbreadth of classification and the range of executive branch policies that restrain the unauthorized disclosure of national security information. There could be a top-down review of these policies or concerted attention paid to declassifying more national security information. After all, a side effect of keeping all critical national security information in the hands of those who have access, authorization and a need to know is the insulation of the executive branch from broad-based press, congressional and public oversight. 

The adversaries of the United States are paying close attention to any information that they can access for their own advantage. Accessing declassified information is especially valuable to these actors because they can utilize sophisticated AI algorithms to rapidly analyze such information in a mosaic fashion to reveal findings that will harm U.S. national security interests. Any contemplated reforms will involve hard choices because a poor exercise of judgment could result in the unintentional revelation of U.S. intelligence-gathering methods, closely guarded technologies, and information that could lead to the death of U.S. citizens as well as U.S. foreign sources and assets.

 Aram A. Gavoor is the associate dean for academic affairs and professorial lecturer in law at George Washinton University Law where he currently teaches National Security Law, Constitutional Law, Federal Court, and Administrative Law. He previously served for over a decade in the U.S. Department of Justice and is an internationally recognized national security law expert.