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Whistleblowers Face a Double Standard When It Comes to Classified Docs

Powerful players in Washington, who routinely mishandle classified documents, face different rules than whistleblowers.

We speak with The Intercept’s Jeremy Scahill about the brewing scandals over the handling of classified documents by President Joe Biden and former President Donald Trump, and how they “point to deeper systemic problems with Washington’s obsession with secrecy.” While the details differ, Scahill says both cases show powerful players in Washington who routinely mishandle classified documents face different rules than whistleblowers who have endured the full brunt of the law for exposing government secrets in the public interest.

TRANSCRIPT

This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: Political pressure is growing on President Biden after the FBI searched his home for nearly 13 hours Friday, found more classified documents. The documents date back to Biden’s vice presidency and his time as a senator. Earlier this month, Attorney General Merrick Garland appointed a special counsel after other classified documents were discovered at a former office used by Biden and at his home.

This all comes as former President Donald Trump also faces a special counsel probe into his mishandling of classified documents and for ignoring requests from the National Archive to return missing presidential records. In August, the FBI searched Trump’s Mar-a-Lago estate and found 184 documents with classification markings.

To talk more about these stories and related issues, we’re joined by the award-winning investigative journalist Jeremy Scahill of The Intercept. His latest article, “The Secrets Presidents Keep in Their Garages and Luxury Resorts: The ceaseless political scandals over classified documents point to deeper systemic problems with Washington’s obsession with secrecy.”

Jeremy, it’s great to have you back on with us. Why don’t you just talk about what’s happening with both Biden and Trump, and what you really call the scandal of classification, overall? Who gets caught, and who doesn’t?

JEREMY SCAHILL: Right. Amy, I think it’s really important, just at the beginning, to remember that the reason some of the laws and regulations are in place that govern President Biden’s conduct regarding classified documents, or then-Vice President Biden’s or President Trump’s, is because of the scandals in the Nixon administration, where there was this attempt — and, in some cases, actual action — taken to destroy documents. So it’s not just about classified documents. It’s also that the president is the ultimate public servant, according to the law, and everything they do as president has to be documented. We, the people, may not have a right to know everything they did immediately, but, ultimately, they are doing a job that is funded by the public and is part of a democratic process. So it’s not just classified documents that we’re talking about; it’s all of the records.

Donald Trump was notorious as president for ripping up all kinds of documents and for completely rejecting many of the norms that are supposed to govern the executive branch in terms of document retention. And what happened was that when he left office, he still was thinking, “OK, I might be able to overturn this election,” and we all know how that unfolded. And he’s also being investigated for his actions around trying to reverse the election results, as well as the events of January 6th at the U.S. Capitol. So, Trump is notorious for trying to destroy documents. He had been warned repeatedly about this practice by people close to him who were lawyers, and he seemed not to care much about it. And according to Trump, there was a standing order at the White House when he was president that simply by thinking about declassifying documents, they became declassified. And the specificity of it was that any time Trump would take documents to his personal residence at the White House, by default, they became unclassified.

So, fast-forward to the waning days of his administration, right up, actually, to the helicopter taking off the lawn, you know, hours before President Biden was sworn into office, you had boxes of documents that were shipped from Washington to Trump’s resort home in Palm Beach, Florida, at Mar-a-Lago. And the National Archives, which is an apolitical entity within the government that is in charge of securing all of these documents, making sure that the historical record is preserved, making sure the classification guidelines are followed along with the relevant security agencies, started to say to Trump’s people, “There are documents missing.” And what Trump did, from the very beginning, was lie, block access, stymie the efforts of the National Archive to retain some of these documents. And ultimately, this went on for about a year. And then, in early 2022, Donald Trump’s lawyers tell him, “You know, you really have to return this stuff.” So they give what we understand to be roughly half of the documents we know Trump to have taken. It’s possible he took many, many more of them. This probe is still going on.

But what’s relevant to this is that once it became clear that Donald Trump was holding documents and that some of them were secret, top secret, even above top secret, you know, top secret SCI, where you had compartmentalized information, code word secret documents — once Trump’s people return that initial batch to the National Archive, and investigators start looking at what exact documents Trump had taken, what we understand is that they felt that there was a very serious risk that Trump had taken very sensitive documents. So they then tried to compel Trump to hand more of these documents over. And the allegation is that Trump lied, or his team lied to investigators, lied to the government, refused to fully comply with a subpoena. And ultimately, Attorney General Merrick Garland signs off on an extraordinary search warrant, that was executed last summer, in August, where FBI agents conducted a raid at Mar-a-Lago and then seized hundreds of boxes — dozens of boxes more, containing 150-plus documents from Trump. And in the affidavit that the FBI filed in support of that search warrant, they said that they believed that they were going to find evidence of crimes, including some provisions under the Espionage Act that have to do with the handling of classified information.

This is all extraordinarily relevant to what would then happen with President Biden, because, as the Democrats have done since before Trump was elected president, they have portrayed Trump as a stooge for Vladimir Putin, as in the pay of Russia, as doing the bidding of foreign powers. And this documents story fed into that narrative, and there was this feeding frenzy, particularly when we learned that Merrick Garland had authorized this search warrant to be conducted at Trump’s property. And so they really went to town on this. In fact, Joe Biden appears on 60 Minutes just this past September and is asked about this, and he says, “How could someone be so irresponsible?” and that his first reaction when he saw the FBI photos of documents laid out on the floor at Mar-a-Lago was “What sources and methods have been compromised?”

Well, fast-forward to November 2nd. Joe Biden’s lawyers are shutting down an office that had been set up just blocks from the U.S. Capitol for Biden in the period between his vice presidency and his presidency at the University of Penn. It was called the Penn Biden Center. And the managing director of the Penn Biden Center was Tony Blinken, who of course now is a very, very senior official in the Biden administration. And one of the lawyers just comes across, in a locked closet — and, mind you, all of this is based on what the Biden people have said, so we have to take it with a grain of salt, because people in power mislead and they lie and all of these things. But, taking them at their word, the narrative is that they discovered a manila envelope that was marked “personal,” and inside of this envelope was a document containing classification markings. So they continue to search, and they find other documents that appear to be classified.

The Biden people then, at the White House, are informed about this, and Biden doesn’t widely share this information with people in his administration. Instead, they gather together an informal war council. And among the people in this war council to try to determine how to handle this — mind you, they know immediately how incendiary this is. They have gone to town on Donald Trump over his mishandling of classified information, and the midterm elections are just days away. So, the Biden people gather an informal war council with Bob Bauer, who is a very famous Democratic elite power lawyer, and Bauer’s wife, Anita Dunn. Anita Dunn, who was a senior adviser to Biden, was an official in the Obama White House, also was called by Harvey Weinstein when The New York Times was about to break the story of his heinous crimes against women. And so, she was like a PR guru brought in by Harvey Weinstein. She’s then in the room trying to figure out how the Biden people are going to respond to this.

And so, what they ultimately decide is: “Let’s self-report this to the Justice Department and to the Archives, and let’s just try to do the opposite of what Trump has done. Let’s just be completely transparent with them, in the hopes that this will all go away.” And what we now know is that the Biden plan was not to say a word about this to the public until there could be a clearing of them by the Justice Department.

Well, then the nightmare starts to happen when more documents are discovered in late December, not in a locked closet in a think tank blocks from the Capitol, but literally on the floor of Joe Biden’s garage next to his prized Corvette. They did not — for 68 days, the American public was not told that the president of the United States had discovered documents that were not supposed to be in his possession once he left office, and that, in fact, that had been a prime attack vector that they had opened up against Donald Trump. Biden only acknowledged the first batch of documents, not the garage documents, when CBS News broke the news that there had been an initial probe launched by Merrick Garland involving the U.S. attorney out of Chicago.

So, you have, on the one hand, the scandal of the documents themselves, which really deserves heavy, heavy scrutiny on both Biden and Trump, but then you also have the fact that the Biden people clearly were not planning on informing the American public about this, and they definitely delayed it until after the midterm elections, and probably would have delayed it to this very day, thinking that they could just get cleared internally by the Justice Department.

JUAN GONZÁLEZ: And, Jeremy, could you talk about the double standard that operates in Washington in terms of classified material? Remind us of some of the high-powered people who were caught inappropriately or illegally —

JEREMY SCAHILL: Yeah.

JUAN GONZÁLEZ: — using material, but then got slaps on the wrist, compared to whistleblowers and others?

JEREMY SCAHILL: Yeah, great question, Juan. I mean, one of the most famous episodes was Bill Clinton’s former national security adviser, Sandy Berger. In 2003, Berger made a number of trips to the National Archives and physically removed multiple copies of a document that had to do with the Clinton administration’s preparations for terrorism attacks. And Berger had been called to testify in 2003 before the 9/11 Commission. And so, his rationale for going into the National Archives was that he was preparing for testimony. But he actually stuffed documents, classified documents, inside of his clothing and then brought them out of the National Archives. He destroyed some of those documents. He left others of them near a construction site, that he said he was going to go and pick them up later. And ultimately, Sandy Berger gets caught. I mean, mind you, this is destroying classified documents. And, you know, there’s serious questions about what Sandy Berger was actually doing there. That’s probably for a different time. But what ended up happening is that Berger was just sentenced to probation. He lost his security clearance for a few years. And I believe, as a result of it, he was also disbarred. So, no actual criminal penalties to speak of.

Former CIA Director David Petraeus improperly shared classified documents with his biographer, with whom he was also having an affair. Now, that brought him down as CIA director, but ultimately he just got probation and a $100,000 fine.

There are also cases, Juan, of government employees, very junior people, who mishandled classified documents for pretty mundane purposes. I tell the story of one woman who was unable to access documents she was using for a classified dissertation that she was writing. And she had taken three other classified dissertations because COVID restrictions wouldn’t allow her to go into a SCIF anymore, a secure classified intelligence facility. She was given three months in prison and basically had her entire career destroyed.

You know, Joe Biden has been in Washington longer than anyone at this point. He is the epitome of the kind of career politician who’s made their entire life off of Washington. And Biden himself tanked the nomination of Ted Sorensen to be Jimmy Carter’s CIA’s director, because Sorensen — this is in the ’70s, Biden as an early senator — because Sorensen had written in an affidavit in support of Daniel Ellsberg, the Pentagon Papers whistleblower— the affidavit wasn’t even filed, but Sorensen, who was a friend of the Kennedy family, was going to be a total reformer at the CIA. Biden colludes with the Republicans. They dig up this unfiled affidavit in which Ted Sorensen admits that he had taken home classified documents to write his biography of his good friend John F. Kennedy. And at the time, Biden suggested that Sorensen might be prosecuted under the Espionage Act for such conduct. The point Sorensen was making is that everyone in Washington takes home classified documents.

So, you know, with Biden, we now have this, you know, doc, doc, goose, here a doc, there a doc, everywhere a doc doc. With Trump, we have this defiant, “Yes, I did it. I had a right to do it. And anything that I do to stop you from violating points one and two, I am right in doing.” This is a disaster, though, for Joe Biden, because the Republicans control the House. They are going to go after him. They’re going to bring in Hunter Biden. Did the Chinese have access to the garage? They’ll ignore Trump completely, you know, totally reckless behavior on Trump’s part. But they are going to go to town on Joe Biden over this. And there are skeletons in Joe Biden’s closet. We all know that. And so, this is going to be a really incendiary period for this White House.

AMY GOODMAN: Jeremy, we want to ask you to stay with us. We’ll do Part 2 after the show at democracynow.org. Jeremy Scahill, senior reporter and correspondent at The Intercept. His latest piece, we’ll link to, “The Secrets Presidents Keep in Their Garages and Luxury Resorts” and “The War Caucus Always Wins.”

And the nominations for the Oscars have just been announced. Nominees for Best Foreign Film include Argentina, 1985. Visit democracynow.org to see our interview with the director, Santiago Mitre. Also, the nominees for Best Documentary Feature Film are All That Breathes, All the Beauty and the Bloodshed, Fire of Love, A House Made of Splinters and Navalny, about the Russian opposition leader Alexei Navalny.

That does it for our show. A very happy birthday to Charina Nadura! Democracy Now! is produced with Mike Burke, Renée Feltz, Deena Guzder, Messiah Rhodes, Nermeen Shaikh, María Taracena, Tami Woronoff, Sam Alcoff, Charina Nadura, Tey-Marie Astudillo. I’m Amy Goodman, with Juan González.