Archives litigator: Executive records belong to the people

Dan Abrams Live

(NewsNation) — Lawyers for former Vice President Mike Pence said classified documents were found last week at his Indiana home.  

Pence’s lawyer wrote that the documents “appear to be a small number of documents bearing classified markings that were inadvertently boxed and transported to the personal home of the former vice president at the end of the last administration.”

In the letter to the National Archives obtained by The Associated Press, Jacob said Pence was “unaware of the existence of sensitive or classified documents at his personal residence” until a search last week and “understands the high importance of protecting sensitive and classified information and stands ready and willing to cooperate fully with the National Archives and any appropriate inquiry.”

Pence’s recovery is the latest in a recent string of document discoveries among officials who have served in the highest ranks of U.S. government.

Former President Donald Trump, who denies any wrongdoing, is under investigation after around 300 documents with classified markings were found at his Florida estate Mar-a-Lago. President Joe Biden is also subject to a special counsel investigation after batches of documents were discovered at his Delaware home and a former office space in Washington.

The White House has struggled to defend the Biden documents scandal, noting that they voluntarily allowed a “thorough and consensual FBI search” of Biden’s Delaware home.

In August, Pence told The Associated Press he did not take any classified information with him when he left office with the Trump administration. In a January interview with Fox Business, Pence said his team had a “very formal process” when it came to handling classified information.

“Before we left the White House, the attorneys on my staff went through all the documents at both the White House and our offices there and at the vice president’s residence to ensure that any documents that needed to be turned over to the National Archives, including classified documents, were turned over. So we went through a very careful process in that regard,” Pence said in the interview.

Biden has been critical of Trump’s handling of documents found at Mar-a-Lago prior to discovery of documents at his own home While appearing on “60 Minutes,” Biden described seeing a picture of documents laid out on the floor at Mar-a-Lago.

“How that could possibly happen? How anyone could be that irresponsible? And I thought, ‘What data was in there that may compromise sources and methods?’ By that I mean, names of people who helped or etc. And just totally irresponsible,” Biden said.

In November, Pence said there would be “no reason” to have classified documents, particularly if they were in an unprotected area.

Trump was quick to question where there were any logs or information about visitors to Biden’s Delaware home where documents were located. When the Pence document discovery was announced, Trump came to Pence’s defense on social media: “Mike Pence is an innocent man. He never did anything knowingly dishonest in his life. Leave him alone!!!”

Marc Lotter worked for the Trump administration. From his perspective, there are too many documents bearing classified markings. Many have questioned the federal government’s system for storing the millions of classified documents it produces each year.

“There are too many of them. I remember when I was preparing to travel overseas with the vice president, all of our meetings about those trips were taking place in a secured facility where you can look at classified information, and we would see, like, a PowerPoint presentation on who we were going to meet. It had Wikipedia information on it, yet it was considered classified. So I mean, does that really need to be classified?” Lotter said in an interview with NewsNation host Leland Vittert.

Lotter added that in his experience, when he was finished reading classified information, he threw a copy of the information in a burn bag.

“You just threw them away, and then the military who are trained in classified documents are handling those. They are disposing of them properly,” Lotter said. “In some cases, if it gets mixed up with other files or other papers, there’s a number of levels of classification and the rigorous monitoring of it goes up higher and higher you go.”

While some can understand how documents would get mixed up, others, including Sen. James Lankford of Oklahoma, are frustrated with the alleged mishandling of records.

“This is not something that happens. I’ve served on the Intelligence Committee. I would tell you, we’re extremely careful with classified documents. We don’t take them home. I never take them in a briefcase. They never leave secure areas,” Sen. Lankford told NewsNation host Dan Abrams.

To think of having classified documents floating around, Lankford said he thinks of two big questions.

“One is, are they still classified? Because there’s some things that are marked classified at the beginning, that later the classification changes, but they’re still marked classified on it, but they’re actually not classified anymore. We’re going to find out, on all these documents, if that’s true. The second thing is how are they leaving the building? They can’t leave the building and get into unsecured spaces, so we’ve got to be a resolved process that’s happening in the executive branch,” Lankford said.

From a preservation standpoint, Jason R. Baron, an attorney who served for 13 years as the first director of litigation for the National Archives and Records Administration, simply said the records belong to the American people.

Baron noted that there’s a big difference between presidential records, government records and personal records.

“Who tracks that? At the White House, it is really up to individuals and their staffs to make sure that they’re doing that segregation properly. And with respect to classified records, there are mechanisms to keep track of what materials are there. But it is not the National Archives that does that during the presidency, it is only afterwards when they take physical possession of records, that they categorize them and make sure they index them and make them available to the American people,” Baron said.

Baron explained that every senior official, whether they’re at the White House or at a federal agency, is briefed on the proper security procedures.

“So I’m not excusing anyone from the responsibility of ensuring that classified materials stay within government agencies, properly stored. Anyone who walks out or has their staff box up materials that are classified, you know, is committing a security breach of some kind,” Baron said.

Baron said while no classified records should be in the homes of former elected officials, he’s not surprised that materials could get mixed up in some cases.

“The fact is … we should not be shocked by the fact that there are these instances, albeit rare, where classified markings get intermixed. Imagine the last few weeks at the White House of any administration. High level officials are very busy up to the last minute doing the government’s business, their staff is being briefed all the time on classified records. And one can imagine that mistakes occur in terms of not properly segregating presidential and vice presidential records from personal records. I’m not excusing any of this. I think there should be inquiries into all of these matters,” Baron said.

While it’s a separate case, reports indicate the Pence document discovery could either weaken or increase the amount of attention on the Trump and Biden documents cases.

The Associated Press contributed to this report.

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