Explained: Did Joe Biden break the law by keeping classified documents at his former office?

Ten classified documents were discovered at Joe Biden’s think-tank, the Penn Biden Center for Diplomacy and Global Engagement. Did the US president break federal law by storing presidential records in his office?

FP Explainers January 10, 2023 13:57:37 IST
Explained: Did Joe Biden break the law by keeping classified documents at his former office?

The documents were found at Joe Biden’s office at the Penn Biden Center for Diplomacy and Global Engagement. AP

First it was Donald Trump and now it’s Joe Biden. The US president may be in a world of trouble after several classified documents from his time as vice president under the Barack Obama administration were discovered at a Washington think tank that he sometimes used as office space.

Reports say that nearly 10 documents were found at Biden’s office at the Penn Biden Center for Diplomacy and Global Engagement, with CBS reporting that US Attorney General Merrick Garland had asked the US attorney in Chicago to review the classified documents which were handed over to the National Archives.

Richard Sauber, special counsel to the president said in a statement that the documents were discovered in November when Biden’s personal attorneys “were packing files housed in a locked closet to prepare to vacate office space at the Penn Biden Center in Washington, DC” and that the White House was cooperating with the Justice Department and the National Archives.

The disclosures immediately caused a political storm with former President Donald Trump, who is facing legal action for storing more than 100 classified documents at his resort in Florida’s Mar-a-Lago, attacking Biden.

“When is the FBI going to raid the many homes of Joe Biden, perhaps even the White House? These documents were definitely not declassified,” he wrote on his Truth Social network.

As the issue further snowballs, let’s take a look at the law that lays out the requirements for maintaining and preserving White House records and if Biden, in fact, did break the law.

The law that governs records

In the US, the President Records Act governs all the rules on presidential records and classified files of the White House. The President Records Act established presidential records are the property of the US government that must be preserved and not the president’s private property.

Before the enactment of this legislation, outgoing presidents simply took their documents with them when they left the White House. The materials were considered their personal property. However, with this law, records became the property of the US government and the National Archives are in charge of them.

The law is applicable to the president, vice president and certain parts of the Executive Office of the President, such as the National Security Council and Council of Economic Advisers. The law lays out the requirements for the maintenance, access and preservation of information during and after a presidency.

According to the President Records Act, records that must be preserved include documents relating to certain political activities and information relating to the president’s constitutional, statutory, or other official or ceremonial duties, including emails, text messages and phone records. But excluded from the act’s requirements for preservation are a president’s personal records, or documents of a “purely private or non-public character.”

As per the law, a former president has to take permission from the archivist to display presidential records, such as in a presidential library, which are operated and maintained by the National Archives.

Richard Nixon, Watergate and presidential records

Interestingly, the President Records Act came into play courtesy former President Richard Nixon. When he resigned amid the 1974 Watergate scandal, he wanted to take his documents to his home in California — including his infamous tape recordings.

Congress realised it wouldn’t have access to the material and also feared it would be destroyed. So, in 1974, it passed the Presidential Recordings and Materials Preservation Act, which made all of Nixon’s material public property.

But this only applied to Richard Nixon. So, four years later, Congress passed the sweeping Presidential Records Act that is in place even today. As Jason R Baron, who served as director of litigation at the National Archives for 13 years, told NPR, “Every president, when they leave office, those records that have been created by the president and his staff are presidential records that go to the National Archives. The owner is the American people.”

Punishments for breaking the law

As is with any law, there are penalties in place for violating the President Records Act. The law stipulates that anyone found to have “willfully and unlawfully” concealed, removed, mutilated, obliterated or destroyed any record faces a fine and imprisonment for up to three years. A person convicted of this offence can be disqualified from holding future federal office.

The Presidential Records Act also states that anyone who “willfully injures or commits any depredation against any property” of the US faces a fine or up to one year in prison if convicted.

Until now, no president of the United States has been punished or penalised, but there have been a few cases involving former presidential aides.

According to NPR, Sandy Berger, who had served as the national security adviser to President Bill Clinton, was accused of smuggling classified documents out of the National Archives in his pants. He was ultimately fined $50,000.

Explained Did Joe Biden break the law by keeping classified documents at his former office

In August of 2022, 11,000 documents were seized from Donald Trump’s Florida Florida’s Mar-a-Lago residence. This led to an investigation against him. File image/AP

Donald Trump and his trove of personal documents

The revelations about Biden’s documents are now drawing parallels with the incident of Donald Trump. The former president is the focus of a criminal probe by the Department of Justice for his removal of the records from the White House in January 2021.

In August of 2022, 11,000 documents were seized, including around 100 marked as classified, from the former president’s sprawling beachside property. Some of these were labelled top secret.

However, Trump denied any wrongdoing and criticised the justice department’s investigation, branding it “politically motivated” and a “witch-hunt”.

Questions Biden will face

Going by the law, Biden will have to face the same questions as did Trump — regarding whether he was entitled to the records, why they were not previously turned over, whether they were securely stored and how they ended up in his office in the first place.

There’s also the question of why Biden didn’t immediately disclose the discovery — the documents were found in November — given Trump’s probe.

President Biden will also definitely face accusations of hypocrisy given his criticism of Donald Trump and the documents seized at Mar-a-Lago.

As CNN wrote, the Biden revelations offer an immediate opening for Trump as he seeks to dodge culpability for his behaviour and claims he’s a victim of persecution to thwart his 2024 campaign.

With inputs from agencies

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