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How presidents are supposed to handle classified documents

MICHEL MARTIN, HOST:

Earlier today, the White House announced that five more pages of classified material have been found at the Biden residence in Wilmington, Delaware. That's in addition to the pages of classified documents that were previously found in the garage of Biden's Delaware home and at the D.C. office he used before his 2020 election campaign. Attorney General Merrick Garland appointed a special counsel this week to investigate the matter, and it's the second time during his tenure that he's done this. A separate investigation is looking into former President Trump's possession of classified documents at his residence on the grounds of the Mar-a-Lago estate in Florida.

The National Archive is in charge of gathering and storing these papers after a president leaves office. Presidents are required to hand over documents to the archive for safekeeping. When President Trump failed to do this, the Justice Department got involved. But it appears the archive wasn't aware of the materials President Biden had. We wanted to learn more about this, especially about the National Archives and its process for collecting presidential material, so we called Timothy Naftali. He's a professor of public service at New York University, and he previously served as director of the Richard Nixon Presidential Library and Museum, where he worked with classified material. And he's with us now.

Professor Naftali, welcome. Thanks so much for joining us once again.

TIMOTHY NAFTALI: My pleasure, Michel.

MARTIN: Just first, if I could just get your - just your kind of first reaction to this latest news about the discovery of more pages of classified documents in President Biden's possession. Just your initial thoughts here.

NAFTALI: My initial thoughts are that this is an unforced error by the Biden administration. About a year and a half ago, the National Archives reached out to former President Trump's team in search of materials that it had learned were not in Washington as they should be and were probably in Mar-a-Lago. I'm assuming that at the time the National Archives reached out to the Trump team that the White House was alerted. And so I wonder why, in 2021, the Biden White House didn't say, hmm, I wonder if there are some materials that are in the vice presidential papers that then-Vice President Biden was allowed to keep. I wonder if there aren't some materials there that shouldn't be there.

MARTIN: So now I guess I think we would like to know, you know, how is it supposed to work? As we said earlier, the National Archives was aware of the documents, at least some of the documents that former President Trump had. And we understand that some of that was that these were some fairly famous materials that he had alluded to, like, for example, letters that he had exchanged with other heads of state, for example - so that there was an awareness that these existed and that the archives knew that they didn't have them. So somebody did. But we are understanding today that the archives wasn't aware of the ones that Biden had. So how does that work? How does it happen that the archives is aware of some materials and not others?

NAFTALI: Well, presidents and vice presidents produce enormous amounts of paper and obviously digital records as well. There isn't a checklist. Indeed, it takes the National Archives decades to fully process presidential and vice presidential materials. In the case of President Trump, there were very famous materials that the National Archives did not acquire on January 20, 2021, that were obviously supposed to be in Washington.

In the case of Vice President Biden, first of all, there's no evidence that there was anybody from the National Archives or any of his lawyers saying in 2017 that whatever it is that we now are finding should have been turned over to the National Archives. And since there was no log of every vice presidential document, the National Archives couldn't have known - unless it was something extraordinarily well known - couldn't have known that it was actually missing something. So that's part of the explanation.

But there's something else that has to be kept in mind, which is that the National Archives has a consultative role, not an investigative role, in a transition. What does that mean? It means the National Archives will go to an outgoing administration, work with them and then take their word on the fact that whatever the former vice president and former president are taking with them home is what they are allowed to take home under the Presidential Records Act. The National Archives doesn't have the staff nor does it have the authority to say, wait a minute. We'd like to look in every single one of those boxes that you're taking to Mar-a-Lago or Wilmington on January 20. So that's why it is possible that national security materials, unfortunately and wrongly, may be interfiled with properly releasable private documents.

MARTIN: I read a quote from you recently where you talked about how, in the modern era, presidents spend a lot more time away from the White House. You said that the presidency moves with the president. And so I guess that means that classified materials are going to be held in places other than the White House. Do - is it your sense that the rules around classified materials need to change with the times? And then also, when people leave office, I mean, what is the reason for them to have these materials? Is it - I guess the assumption is people are going to write books or what?

NAFTALI: Well, presidents and vice presidents and members of the National Security Council live in a bubble. They can move classified records around their offices - and, in the case of the president and the vice president, too, I believe, their residences, in a way that ordinary mortals cannot. Now, that doesn't mean that this should continue once they leave office because once they leave office, those classified materials don't belong to them. They belong to the American people. They have the right to go to the National Archives anytime they want to read their materials while they're working on their memoirs. But they're not allowed to bring those classified materials home anymore to write their memoirs. There was a time when they could, but that ended decades ago.

MARTIN: And why did it end?

NAFTALI: It ended because of Watergate.

MARTIN: Before we let you go, is there anything else you think we should know about this whole process? Because, again, we're talking about this in a way that I think very few of us have, really, since the Watergate era. This has been sort of a mundane topic until now.

NAFTALI: I believe that our freedom depends on as much transparency as possible from our government. And I say that because human beings are flawed, and we should expect that we will elect flawed people - not always. And it is essential that future presidents know that we will catch them. We will figure out if they abuse power. And the only way to establish that kind of fear in future leaders is for there to be a system of declassification and accountability. So even though the machinery of declassification is complicated - it's a little mundane to discuss it - that machinery is an important part of our accountability and our ability as citizens to restrain those that lead us.

MARTIN: That was Timothy Naftali, professor of public service at NYU and former director of the Nixon Library. Professor Naftali, thank you so much for being with us.

NAFTALI: My pleasure, Michel. Thank you. Transcript provided by NPR, Copyright NPR.