Can Americans sleep soundly at night, confident that our national secrets are safe from falling into the wrong hands? The same for our allies?
With all due respect to former President Trump and his aides, along with the leaders of America’s intelligence community in Congress, the CIA, the FBI and other high federal officials, both sides in the battle over the classified documents in Mar-a-Lago have been insulting our intelligence.
We reach this conclusion most regrettably. But unlike Col. Nathan R. Jessup (a.k.a Jack Nicholson) in “A Few Good Men,” we think Americans can handle the truth.
When Trump left the White House in January 2021, he and his aides knew that he no longer had the right to possess certain sensitive intelligence information. The now former president says that prior to leaving the presidency, he issued an oral order declassifying any previously classified documents later sent to his residence, or already kept there. But this explanation is not consistent with other statements by the former president, including his claim that documents may have been planted to frame him.
The White House has procedures to ensure that sensitive classified information is secured. That system apparently collapsed in the Trump White House. The staff secretary and the National Security Council executive secretary offices should have had records of what documents went where during the four years and then worked to retrieve them well ahead of time. The presidential daily briefer (PDB) and staff are supposed to keep tabs on anything not returned with the briefing book.
Thus, Trump had no legal right to hold in his personal possession, into his post-presidency besides, classified, and much of it extremely sensitive, information posing a potentially serious, if not grave, danger to our national security. He lacked the required security clearance. This information was furthermore not kept in the secured, restrictive access environment required by law.
Let’s assume, for the sake of argument, that Trump only wanted the information to help write his memoirs. Unfortunately, motivation is irrelevant to the intelligence matter at issue: To wit, he had no legal right to possess such sensitive information in written form.
The former president needs to own up to his mistake.
But our intelligence community, starting with the Senate Intelligence Committee, needs to do the same. One member of the committee claimed he had no idea that Trump had this information until recently. This defies a reasonable interpretation of the known facts. Committee members, at least some, knew well before.
It’s too easy to put all the blame on the former president and the failures of his administration to follow established protocols for securing classified materials.
The intelligence community had long complained about President Trump’s cavalier handling of classified information. Just about everyone in the Washington, D.C., political community knew he had taken boxes of documents to Florida. The intelligence community’s criticism of Trump convinced President Biden to deny his predecessor the regular intelligence briefing given all other former presidents.
By the middle of last year, the National Archives and Records Administration (NARA) had alerted the White House and others about the probability that Trump possessed documents he longer had the right to keep, much less allow others without proper clearance to see. NARA earlier this year made this point again in a letter to key government officials. Were congressional intelligence committees, among others, kept totally in the dark?
Federal law limits access to the previous Oval Office occupant’s presidential documents for several years. But facts already known make this clear: the intelligence community might not have seen the actual documents, but it has been long aware of the classified nature of the information therein.
Bottom line: For over a year, NARA had a reasonable suspicion of the nature of the documents that Trump continued to refuse to give back. For the past six months, NARA and the intelligence community had sufficient evidence to believe those documents contained information of potential grave harm to the nation.
Perhaps government officials are restrained from telling us all they did to ensure Trump’s documents were secure from prying eyes. Perhaps the FBI got a secret FISA warrant. Perhaps the government planted assets inside Mar-a-Largo. There can be endless speculation.
But this we know for sure: Instead of seizing the documents and ending the potential threat, our intelligence community, acting through the FBI, let an unauthorized person keep the documents in an unauthorized location in violation of mandatory protocols.
Americans deserve better. Certainly from a former president.
But the same is true for the actions of our intelligence community. They decided to give former President Trump unprecedented deference. Their defenders will say political reality left them little choice these past 18 months.
We disagree. Consider that the intelligence committees of Congress are now demanding a damage assessment. If they had acted appropriately, there would be no need for one at this point.
There must be zero tolerance for actions capable of putting our national security at such risk. We need better protocols for ensuring certain documents can’t leave secure rooms. As soon as there is reason to believe someone has unauthorized access to classified information, the law must provide an immediate path to get it back. Our Constitution permits this.
The Trump document fiasco points to one of the greatest intelligence failures since the Cold War. We need a presidential commission to review the circumstances and propose laws to prevent a recurrence. This ensures future good will come from this debacle.
Trump would be well advised to admit his mistake. The intelligence community also needs to own up to its failures. One of America’s greatest strengths is our willingness to give people who have accepted their punishment and atoned for their misdeeds a second chance. America is more important than any one person or any one group of people.
Mark J. Rozell is dean of the Schar School of Policy and Government at George Mason University. Paul Goldman is a Richmond, Va., based attorney.
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This story was originally published August 30, 2022 8:00 AM.