Editor’s Note: Editor’s note: This story originally published on January 19, 2023.
A Defense Department contractor allowed classified information to sit unprotected in a commercial cloud and email server for nearly two years.
A private attorney received a 1,000-page file from the Army as part of litigation – only to be asked to return it to a special courier several weeks later because it contained classified information.
A national security official was so convinced classified documents weren’t secure they drove to their office on Super Bowl Sunday to make sure they were locked up.
All are fairly recent examples of classified government documents falling outside of protected places, a phenomenon that’s taken on heightened significance now that two special counsels are investigating President Joe Biden and former President Donald Trump for their handling of classified information. On Tuesday, CNN reported that a lawyer for former Vice President Mike Pence had also discovered about a dozen documents marked as classified at Pence’s Indiana home in mid-January and turned them over to the FBI.
But what is known in intelligence circles as “classified spillage” is, in fact, incredibly common, according to former intelligence officials and attorneys who specialize in cases involving classified information. Most of these cases are simple mistakes that aren’t charged as crimes: a government employee accidentally takes a document home in their briefcase or fails to follow the correct protocol for handling a particular piece of information.
Many of these cases are resolved with a simple conversation with the agency’s security officer, former national security officials said.
In a system of over 4 million security clearance holders, said Bradley Moss, a lawyer who specializes in classified information, such lapses are essentially inevitable. In 2017, a government agency responsible for oversight of the classification system estimated there were nearly 50 million times when information was marked as classified.
“The fact that this is a fairly common occurrence is something that I think the government doesn’t like to advertise, because it to some degree gives the lie to this notion that every piece of classified information is inherently, exquisitely sensitive, and that the stakes for any kind of mishandling are automatically the highest,” said Elizabeth Goitein, a national security law expert at the Brennan Center for Justice.
For Biden and Trump, the stakes of each possessing unauthorized classified material are indeed high as they face special counsel investigations while preparing for another presidential race. In 2016, the investigation into Hillary Clinton’s handling of classified material on her private email server dogged her presidential campaign for months – ending with the Department of Justice declining to prosecute her because there wasn’t evidence that she or others intended to mishandle the documents.
Several national security lawyers noted that the special counsels’ investigations are examining whether there’s been criminal mishandling of national security records – a step further than a typical spillage. The existence of the investigations, however, doesn’t necessarily mean they’ll result in criminal charges, and no one has been charged in either the Trump or the Biden probes.
In the vast majority of cases where classified information spills out, a Justice Department investigation is never considered.
Everyday cases are handled internally by the relevant agency’s security or counterintelligence offices, or sometimes an inspector general. Each agency handles such cases differently, said Brian Greer, a former CIA lawyer who specialized in national security investigations, but most of the time the punishment is administrative.
In some severe cases, of course, employees can be fired or have their security clearances revoked – but it all depends on “the facts and the circumstances” of the breach, he said.
“Mishandling happens every day within the federal government,” said Greer. “People, not withstanding how much training they have, can make innocent mistakes and be sloppy. Most of the time nothing comes of it beyond some discipline – depending on the severity.”
If there are “aggravating factors” – particularly intent to either leak, sell or hoard sensitive government secrets – then the agency whose employee is under investigation must decide whether to report the breach to the Justice Department for possible prosecution.
“That’s art, not science, candidly,” Greer said. “Having been involved in those discussions, there’s no clear line,” he said, in part because US espionage statutes are written relatively vaguely. “You do have to use good judgment.”
‘Puzzling’ spillage of classified material
More than 300 classified documents have been discovered at Trump’s Mar-a-Lago resort, both in boxes Trump’s aides turned over to the National Archives and material later found by the FBI. The boxes had been brought to Mar-a-Lago after Trump left office, and personal material was mixed in with the classified material. The Justice Department is still trying to determine that all documents are back in the federal government’s possession – after a year of Trump’s team dragging its feet to return all records.
Biden’s document problems began in November when his personal attorneys discovered classified records from the Obama-Biden administration at the Penn Biden Center in Washington, and then notified the Archives. Additional searches would turn up additional classified material at the president’s Wilmington, Delaware, home. In Biden’s case, the amount of classified material is much smaller, with around 20 classified documents discovered that the White House said may have been shipped during his 2017 transition out of office. Biden’s team has cooperated with the Archives and the Justice Department to return the material.
Still, several senior aides to former presidents and vice presidents told CNN they were surprised by the discovery of classified information in both Biden and Trump’s residences. The aides said their offices had been deliberate in how classified material was handled and what was done if it was discovered, even as the chaos of a presidential transition approached.
One senior aide to a former vice president said it was “puzzling” how the classified materials ended up in Biden’s personal files during the transition, because the classified documents never should have been intermingled to begin with.
In the case of Pence, senior aides emphasized the importance of document retention under the Presidential Records Act well before the 2020 election, according to a person familiar with the Pence process. Pence’s staff even held a “Jeopardy”-style game during training on records compliance to keep aides engaged in the training, the person said.
“The point was people understood from the vice president that he expected them to take the legal requirements pertaining to presidential records seriously,” the person said. “It meant that early on, even before we got to the transition, people understood what their record keeping obligations are.”
The boxes at Pence’s Indiana home where classified material was discovered did not go through the same process as the rest of Pence’s documents, sources familiar with the matter told CNN, as they were packed up at the vice president’s residence and in the White House in the final days of the Trump administration.
How the government responds when classified information spills out
At the White House, some of the most sensitive intelligence information is contained in documents like the President’s Daily Brief, the intelligence community’s collection of secrets, intelligence and analysis about long- and short-term threats.
Throughout the rest of the federal government, there’s reams of classified information that, while sensitive, is not equivalent to sharing nuclear secrets.
Some key lawmakers and many former national security officials have argued that the US has an “overclassification” problem, creating a glut of classified data that is increasingly unmanageable, with some declassification advocates arguing it’s impeding public debate and damaging critical information sharing within the government.
The Information Security Oversight Office, a government agency tasked with oversight of the classification system, recommended in its most recent report to eliminate the “confidential” classification level, which would leave only “secret” and “top secret” classified documents.
“The classification system that we’re working under is still in essence the same we had during World War II and the Manhattan project,” said J. William Leonard, a former deputy assistant secretary of defense and ISOO director during the George W. Bush administration. “We’re in an automated environment that deals with massive amounts of data, yet we’re still dealing with a system that was based on a paper environment from 80 or more years ago.”
National security experts said that the classified landscape has shifted considerably in the last three decades, as the internet age has made it more difficult to track classified documents and to stop their spread when they are accidentally disclosed. Each government agency that handles classified material has a procedure in place for when it’s disclosed.
That doesn’t always mean the matter is handled quickly. In the case of one Pentagon contractor in 2016, both the contractor and the Defense Threat Reduction Agency failed to address classified spillage on a commercial cloud and an email network server for two years, according to a 2019 Defense Department inspector general report on contractor-owned networks.
Often the disclosure is inadvertent. During the Obama administration, the Army sent a document to an attorney as part of litigation, before discovering there was classified material contained in it, according to a source familiar with the incident. An Army security officer showed up at the lawyer’s house with an authorized courier card and sealed briefcase. The lawyer turned over the records, which were locked into the briefcase, and signed a “spillage” form. Later, the lawyer received an updated – and unclassified – copy of the document.
Leonard recalled his own episode of classified spillage while he worked at the Pentagon in a classified environment. Leonard said he was leaving for a work trip to Williamsburg, Virginia, and his assistant handed him an itinerary that he put in his briefcase. When he arrived in his hotel room, he discovered a classified document was attached to his unclassified itinerary.
Leonard kept the document secure with him while he delivered a presentation in Virginia the next day before promptly returning it to the Pentagon and informing Pentagon security officials of the violation.
“I had to sleep with that document – I put it under my pillow at night,” Leonard said.
‘An issue of intent’
Government officials who mishandle classified information can face administrative penalties, depending on the level of negligence. Typically, there has to be some sign of intentional wrongdoing for the Justice Department to get involved.
The most high-profile cases of prosecution for mishandling of classified information were not “accidental incidents,” Moss said.
In 2019, for example, a former Booz Allen contractor named Harold Martin pleaded guilty to illegally removing massive amounts of classified data from the NSA – and apparently hoarding it at home. He was sentenced to nine years in prison, under a plea agreement signed by then-Maryland US Attorney, Robert Hur – who was named this month as the special counsel in the Biden documents case.
Last year, a former FBI intelligence analyst in Kansas City pleaded guilty to taking classified documents to her home, including materials related to al Qaeda in Africa.
Former Clinton national security adviser Sandy Berger pleaded guilty in 2005 to smuggling classified documents out of the National Archives while assisting the 9/11 commission, taking them in his socks. Former Obama CIA Director David Petraeus pleaded guilty in 2015 for retaining classified information for later use in a book.
In cases involving criminal charges, there’s typically a common thread, Moss said. “There was an issue of intent.”
One other possible marker of intent, he added: “Obstruction of the government’s efforts to recover the records.”