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Sloppy handling of classified documents is very serious, ethics lawyer says

LEILA FADEL, HOST:

OK, we just heard about how the media covered the discovery of classified documents at the Penn Biden Center. But what are the ethical and legal implications? For that, we're turning to Richard Painter via Skype. He was the chief ethics lawyer of the White House under President George W. Bush. Good morning.

RICHARD PAINTER: Good morning.

FADEL: So if you put your chief ethics lawyer cap on, what are you looking for going forward?

PAINTER: Well, first, it's critically important that we treat the classified information appropriately, which means keeping it in a secure information facility, a SCIF, and only have access to people who have the security clearance. And sloppy handling of classified information is a very serious matter. This is something that I reiterated in 2005 to the White House staff after we had a scandal where someone intentionally leaked the name of CIA agent Valerie Plame in order to retaliate against her husband. But sloppy handling of classified information is very, very serious.

Now, that being said, that is not going to result in criminal charges simply if someone was sloppy, whether it's Hillary Clinton's email server or what happened here. On the other hand, if someone lies about having classified documents and refuses to turn them over - what happened at Mar-a-Lago - that is going to result in an FBI raid. And I'm surprised the FBI didn't raid more of Donald Trump's properties in light of what happened there. So there's a clear distinction between the criminal, on the one hand, and the incredibly sloppy handling of classified information that happened here, where somebody packed up boxes in the vice president's office and shipped them over to the Penn Biden Center. And there are a bunch of other controversies surrounding the Penn Biden Center. And then - they're unrelated, I'd emphasize. You know, but this is sloppy, to have done that, whoever packed the boxes.

FADEL: So in your view, in this case, this is carelessness rather than criminal in what you're seeing so far?

PAINTER: Yes, very, very careless. I mean, whoever is packing the boxes - you know, packing up the office of the vice president of the United States should be probably a lawyer from the counsel's office who could review documents because it's not just classified documents. Other government records, originals, cannot be removed from the premises. If it's a photocopy of a nonclassified document or if, on the other hand, it's a - you know, that's OK. But if it's classified or it's an original of any document, you can't take it off of the premises.

FADEL: So what should have been done to ensure that the then-former Vice President Biden didn't have classified documents among his files?

PAINTER: Well, there should have been a review of these files first, before they left the vice president's office. They should have gone through everything and make absolutely sure there was no classified documents in there. Classified documents have a cover on them clearly indicating that there is a classified document inside. And so if someone had bothered to look, they would have seen that. When the documents arrived at his new office, they also should have been reviewed as well to ascertain that they only had documents that the then-former vice president had a right to retain.

FADEL: So clearly, these procedures that you're describing, at least in this case, weren't followed. Does President Biden then bear responsibility?

PAINTER: Well, I mean, ultimately, we do have responsibility for the work of our staff and - whether it's the vice president's office or, on the other hand, the people over at the Penn Biden Center, who also should have made sure that they only had that which they were entitled to have. And the president does bear responsibility, the boss does. That does not mean it's criminal responsibility. And once again, he did not refuse to turn over the documents. The - his lawyers and the president reported this when they found the documents. This is very different than the situation we had down in Mar-a-Lago.

FADEL: Why doesn't the National Archives seem to know when these sensitive documents go missing? I mean, in this case, it appears they only knew when Biden's lawyers told them. Why is that?

PAINTER: Well, this is a serious problem. We are not keeping track of classified information as we should be because we should know how many copies there are of classified documents and where they are. And we shouldn't just have copies of the classified documents floating around all over the place.

FADEL: Richard Painter is a former chief White House ethics lawyer. Last year, the former Republican ran as a Democrat in a U.S. House race in Minnesota. Thank you so much.

PAINTER: Well, thank you. Transcript provided by NPR, Copyright NPR.