The Classified Document Scandal Is Even Dumber Than You Think

It’s hard to imagine a dumber way to protect our national intelligence.

President Biden is facing a Justice Department special counsel investigation that’s already included an FBI search of his home after his team found classified documents at his house and private office. Earlier this week, former Vice President Mike Pence’s team admitted that they, too, had found classified documents at his private residence. The FBI raided former President Donald Trump’s home after he refused for months to return classified documents.

And on Thursday, news broke that the National Archives has reportedly formally requested that the other former presidents and vice presidents go back and check to make sure they aren’t accidentally hanging on to any classified documents, the latest development in a growing fiasco that shows exactly how poorly the U.S. government’s classification system works.

Experts and sources describe the classification process as messy and cumbersome, with far too much information needlessly marked classified. And they complain that when the handful of people at the top of the government mishandle classified information, they’re treated very differently than the (literal) millions of other people with security clearances would be treated if they accidentally misplaced classified material.

“It’s a ridiculous system that’s not fit for purpose anymore,” one State Department official told VICE News.

So, what level of clearance does this source have?

“I’m not supposed to tell you that—it’s classified,” they said with a laugh.

Every source VICE News talked to said that there was a clear distinction between Biden’s and Pence’s situations and Trump’s. Biden and Pence’s teams made apparently honest and minor mistakes with a handful of documents and sought to rectify them once they discovered the documents; Trump acted with willful disregard of the law, lied to the Justice Department about what he had, and attempted to keep much higher-level classified documents that seemingly contained actual state secrets at his Mar-a-Lago estate.

But most argued that it was unsurprising that Pence’s and Biden’s teams had screwed up and brought a few classified documents with them when they left office—and that the documents themselves were likely pretty innocuous.

With the rush of shutting down the office at the end of a presidential term and transferring all those files to a private office—especially in the chaotic transitions that bookended the beginning and end of the Trump administration—it would have been easy for a few documents to accidentally get tossed in a box and shipped off.

“It would surprise me if it didn’t happen. You have so much classified information, so many documents going around every day, it seems inevitable,” Jeffrey Fields, a former Department of Defense and State Department official, told VICE News.

Fields, who had the highest level of clearance (top secret/sensitive compartmented information, or TS/SCI), said that if he went through his own office and checked every paper he’d taken when he left government work, he guaranteed that “there’s probably a classified document in here somewhere.”

Part of the problem is that there’s just way too many things being unnecessarily classified.

Most government employees and contractors can’t actually determine what gets classified, but have to make sure any information they generate is correctly marked based on how earlier things had been classified—what’s known as derivative classification authority. They’re legitimately terrified of the consequences if they fail to classify something or mishandle classified information, so err on the side of caution. 

“There is such a huge volume of needlessly classified information,” said Elizabeth Goitein, the senior director of the Brennan Center for Justice’s Liberty & National Security Program and an expert in the classification process. “Officials are busy and risk-averse and it’s just easier to classify everything by rote.”

On top of that, sources said many things get classified not because they’re actually a national security risk, but because it would be embarrassing if they were made public. Documents are classified at levels of ascending risk—confidential, secret and top secret—and the lower-level classifications have been significantly overused.

The pure magnitude of classified documents can cause people’s vigilance to slip, especially higher-level officials who deal with a firehose of classified information, and they make mistakes.

“When so much information is classified it is very difficult to ensure consistent compliance with all of the procedural rules and requirements for handling it,” Goitein said. “Officials who are very busy may actually be cutting corners in part because they know the information they’re working with is not actually that sensitive… Eventually something’s going to fall through the cracks.”

Sources with high-level clearance told VICE News that even documents marked with the highest level of classification, “top secret/sensitive compartmented information,” often contain relatively mundane information that sometimes only gets classified not because of the information itself, but because adversaries might be interested to learn that certain officials were looking at it.

“There’s not a good way to distinguish between ‘these are state secrets’ and ‘these are things the president has read,’” said the State Department source.

But security clearances are a lot more widely available than most people would assume.

Almost 3 million people have active clearances to view classified information, including 1.2 million who have permission to view top secret documents, according to a 2020 report from the National Counterintelligence and Security Center, part of the Office of the Director of National Intelligence.

That report itself shows exactly how wary the government is about sharing information. It was originally marked “for official use only,” a designation that’s not even part of  the classification system but the Department of Defense and Department of Homeland Security use to somewhat arbitrarily declare that the public has no business seeing certain information (the State Department has made up its own term, “sensitive but unclassified”). 

Every source with clearance that VICE News talked to had absurd stories about the classification system.

“I can’t count the number of times I’ve handed a classified document to a senior official who mishandled it,” Fields said.

He recounted an instance where he’d brought classified papers to his boss, a retired two-star admiral, who forgot to return it. Later in the day, he saw it sitting unsecured on his boss’s desk after they had left for the day.

The State Department official said at one point they’d typed up quotes from a foreign official’s public speech at the United Nations that they’d streamed online to share with their bosses, and emailed it over, only to be told that it should have been classified.

One former CIA senior analyst who had top-level clearance said at one point, just to see if they could do it and “test the system,” they’d intentionally written a report with the express aim to keep it from being classified, using only non-confidential sources and information. Their boss had insisted on classifying the entire report anyway.

Sometimes different branches of the government don’t even agree on what should be classified. And the  process of retroactive classification can mean that information that was once deemed totally fine to discuss publicly is no longer.

That’s what happened to Hillary Clinton during her 2016 email scandal: As the emails on her private server were gradually released, one agency balked at releasing some of them publicly, leading to embarrassing headlines like the New York Times’ “22 Clinton Emails Deemed Too Classified to Be Made Public.” 

Clinton’s team was furious.

“We understand that these emails were likely originated on the State Department's unclassified system before they were ever shared with Secretary Clinton, and they have remained on the department’s unclassified system for years. And, in at least one case, the emails appear to involve information from a published news article,” Clinton spokesman Nick Merrill groused at the time in a statement from the campaign. "This appears to be over-classification run amok.”

Every source with a security clearance who talked to VICE News said they’d known colleagues who accidentally brought classified documents home from work with them or had forgotten to lock the safes where they’re supposed to store classified information.

That doesn’t mean that the errors on the Pence and Biden teams weren’t sloppy mistakes.

Representatives for former Presidents Barack Obama, George W. Bush, and Bill Clinton have all said in recent days that they don’t have any classified documents lying around. The National Archives declined to comment when VICE News asked for a list of which former officials they’d reached out to.

The former CIA analyst said that they were infuriated that lapses in security that would get someone like them fired or even prosecuted were shrugged off when it was a big-wig like a president or cabinet official who mishandled classified material.

“When you’re a big shot there are no consequences,” fumed that former official. “If the rest of us are supposed to take seriously our clearances of properly handling information it should go to the very top.”

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