Under US law, all presidential records must be turned over to the National Archives at the end of a term. An obligation that Joe Biden, vice president of Barack Obama between 2009 and 2017, and Donald Trump, president between 2017 and 2021, did not respect. With the discovery of classified documents at the residences of both politicians, they risk legal consequences, but not to the same extent.
Former President Donald Trump has risked criminal charges by refusing to return top-secret files to the government after leaving the White House. And now lost files with classified marks could cause incumbent Joe Biden a political headache.
Both situations are far from being equivalent. But taken together, they represent a remarkable stretch in which records management has been a recurring source of controversy at the highest levels of American politics.
Presidential records are considered government property
The Presidential Records Act (PRA), a 1978 law, requires the presidents and vice presidents of the United States to transfer all their emails, letters, and other working documents to the National Archives.
This government agency is defined as “the collection of documents of the United States Government that collects important events in American history.”
The PRA then changed the legal ownership of a president’s official files, which went from being private to public as of January 20, 1981, when Ronald Reagan, the 40th president of the United States (1981-1989), took office. possession of his post. The law also extends to the files of vice presidents, who receive the same treatment, as we have seen recently with Joe Biden.
At the end of a term, the papers, archives and historical documents of the presidents of the United States are transferred to the presidential libraries and museums, created as a result of an initiative of President Franklin D. Roosevelt (1933-1945).
These buildings are generally built in locations significant to each president or on the campus of a state university, and allow public access to declassified documents for five years after the presidency ceases.
The classification of documents
In order to be classified as classified (meaning that due to their sensitive nature their access is restricted and requires security authorization) or not, the files of the presidents or vice presidents have to pass into the hands of the National Archives, by law.
But even during a term, another law, the Espionage Act, prohibits US officials from keeping classified documents in unauthorized and unsecured locations. However, both Joe Biden and Donald Trump appear to have violated these rules.
There are three levels of classification: “confidential”, the lowest; “secret” and “top secret”. For now, the documents found at Joe Biden’s house would only be “confidential.”
The number of files and intentionality, among the penalty criteria
Under the law, in the United States, any person who intentionally conceals or destroys official documents may be fined and imprisoned for up to three years, and may be disqualified from holding public office and from being elected to office.
However, this is only a crime if it is done intentionally. White House counsel Richard Sauber expressed his confidence that newly appointed special counsel Robert Hur’s investigation “demonstrates” that classified documents found in a residence and private office of the current president “were inadvertently lost.” “.
It was also Biden’s own lawyers who notified the authorities that they had found classified documents among the president’s possessions. Joe Biden, who claims to be unaware of the content of the documents, promised on Thursday to cooperate “fully” with Justice.
Trump’s case is more problematic, because it was the National Archives that realized the records were missing. As Trump did not want to return them, the State had to use force to recover a hundred documents, some of them classified as “top secret”, with the named record carried out by the FBI.
According to the Ministry of Justice, the classified documents were “probably hidden and removed” from a storage room. For this reason, Trump is also facing an investigation for possible obstruction of Justice. US law provides a maximum penalty of 20 years in prison for obstructing a federal investigation by destroying, falsifying or concealing documents.
Expected political consequences
However, these distinctions between Joe Bien and Donald Trump may turn out, in the eyes of the American public, to be insignificant details. Because, in the case of Joe Biden, if this “negligence” escapes prosecution, the fact is still a major political mistake.
US Attorney General Merrick Garland has appointed former US Attorney Robert Hur to the post. The announcement is intended to allay any suspicions of favoritism, as Merrick Garland had already appointed a special prosecutor to investigate Donald Trump and the many more classified documents the former president took.
There is a “desire to demonstrate that the Biden Administration takes the judicial process seriously and is committed to the independence of Justice”, explained in RFI Julien Toureille, resident researcher at the Raoul Dandurand Chair of the Observatory on the United States of the Uqam of Quebec.
Joe Biden expressed early on a very clear ambition to have a transparent presidency and to appear someone with a lot of experience compared to the dysfunctional Trump presidency. But this case underlines the comparison with Donald Trump, and rightly questions Biden’s transparency.
It is not yet known how the notes are classified, how many and when they were made, or what topics they dealt with. It is also not known why the White House waited until January 9 to confirm the first discovery made two months earlier, in November. This is one of the most insistent arguments of the Republicans, who denounce this silence from the Administration before the midterm elections on November 8, 2022.
With AP, EFE, AFP and Reuters
