As we discussed at the time of the Mar-A-Lago raid, “(u)nder 18 USC 2071(a), ‘Whoever willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys, or attempts to do so, or, with intent to do so takes and carries away any record…document, or other thing, filed or deposited…in any public office, or with any judicial or public officer of the United States, shall be fined under this title or imprisoned not more than three years, or both.’” Further, “(u)nder 18 USC 1924(a), ‘(w)hoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than five years, or both.’”
There is no “it’s only a couple of pages” defense, nor is there a “private-office space” distinction from a “personal home” in either of these statutes. In fact, as Sky News admits, it is irrelevant how many documents are involved, or where they were kept. Possession of the documents outside of a secured location itself is the crime.
Therefore, we are left with intent as the crucial issue. But the legal standard for “willfully and unlawfully…removes” and “intent to retain such documents…at an unauthorized location” is not the same as the dictionary definition of those words. As we discussed in our review of Hillary Clinton’s mishandling of classified materials, “to be found guilty of a violation of (these laws), you do not need to have intended to break the law – you need to have intended to retain the classified documents ‘at an unauthorized location.’ As discussed by Anthony Christina in the Penn State Law Review, ‘(t)o convict Clinton, it must be shown that she had knowledge that classified emails were contained on her private server. The most recent total by the State Department of their review of 30,000 Clinton emails indicates that at least 671 emails sent or received by Clinton contained classified information…(t)he conclusion is inescapable – if a ‘reasonable person’ would know that almost 700 emails were classified, and had no place on an unsecured server, it would not be hard to establish that then-Secretary Clinton intended ‘to retain such documents or materials at an unauthorized location.’”
To understand this distinction, let’s review several cases where the Justice Department has prosecuted people for mishandling classified materials.
Earlier this year, “(a) former civilian employee of the Defense Department was sentenced…to three months in prison after admitting to taking materials containing classified information to her hotel room and to her personal residence…(t)he ex-Defense Department employee…Asia Janay Lavarello, was on a temporary assignment at the US Embassy in Manilla when she took classified documents from the embassy to her hotel room, according to court filings. She hosted a dinner party at her hotel on the day she removed the documents, March 20, 2020, and an embassy co-worker in attendance found the documents, which had classified markings on them, according to the court filings…The documents she took home were three…classified theses, her lawyer told CNN, and she had no intention of transmitting the classified information or of harming the United States.”
In 2013, “(r)etired Lieutenant Colonel Benjamin Pierce Bishop was arrested in Hawaii and charged with one count of unlawfully retaining documents related to the national defense…Court papers alleged Bishop, who was working for a defense contractor, stored 12 documents containing classified information at his residence.”
Then there is this case we described in an earlier article; “On April 23,(2015, General David) Petraeus pled guilty to a single misdemeanor charge of unauthorized removal and retention of classified documents or materials under 18 USC §1924…(i)nstead of turning his journals — so-called ‘black books’ – over to the Defense Department or CIA when he left either of those organizations, Petraeus kept them at his home – an unsecure location – and provided them to his paramour/biographer, Paula Broadwell, at another private residence.’ (For more detail on the Petraeus case, read here) Did Gen. Petraeus ‘intend to break the law?’ No – but he did intend to retain classified documents at an unsecured location, and fail to keep them secure.”
In each of these cases, it did not matter whether the defendant kept the classified documents in a private residence, a hotel, or any other location. The fact that the location was not authorized is the key factor.
Thus, it doesn’t matter whether Biden kept those documents in his garage, his residence, or an office at the University of Pennsylvania. It matters that all of those places are “unauthorized location(s).”
Further, the number of documents is equally irrelevant. Lt Colonel Bishop only had 12 documents; Ms Lavarello had 3; yet both still faced criminal prosecution.
Most important, however, intent does not mean, “I purposely broke the law.” It means you intended to remove the documents from an authorized location, and kept them at an unauthorized location. Like your office at the University of Pennsylvania. Or your garage, next to your Corvette. Or your residence.
In this regard, Trump may actually have a better argument in his behalf than Biden. According to CNN, “(i)n early June, a handful of investigators made a rare visit to the property seeking more information about potentially classified material from Trump’s time in the White House that had been taken to Florida..the investigators asked the attorneys if they could see where Trump was storing the documents. The attorneys took the investigators to the basement room where the boxes of materials were being stored, and the investigators looked around the room before eventually leaving,..Five days later, on June 8, Trump’s attorneys received a letter from investigators asking them to further secure the room where the documents were stored. Aides subsequently added a padlock to the room.”
The Article Concludes Tomorrow
Judge John Wilson (ret.) served on the bench in NYC
Illustration: Pixabay