When It Comes to Mishandling Classified Documents, the Powerful Are Treated With Kid Gloves

Mishandling classified documents, as both Joe Biden and Donald Trump are now accused of doing, is just one type of crime for which America increasingly has one justice system for the rich and powerful and another, far harsher system for everyone else.

Low-level, inadvertent violators of classification law have faced severe punishment under both Donald Trump and Joe Biden. (Brendan Smialowski / AFP via Getty Images)

Let’s be honest: as much as they might obsess the media, the classified documents scandals that engulfed Donald Trump and now President Joe Biden are a bit overblown. Rampant overclassification and absurd levels of government secrecy have been a problem in Washington for decades, often being used to ruin people’s lives in nightmarish, Kafkaesque ways. Of all the pressing crises afflicting the United States right now, presidents mishandling classified documents isn’t just not a top priority — it wouldn’t even rank in the top ten.

But all of that’s not to say that the story doesn’t matter at all, as so many commentators who eagerly pounced on Trump’s document scandal are now trying to claim. The true outrage about this whole affair is that if Biden and Trump weren’t wealthy, prominent, and politically powerful people, we wouldn’t be having any of this discussion at all — they’d simply be prosecuted and thrown in jail without anyone so much as batting an eye.

The fact is, low-level violators of classification law who have mishandled secrets in exactly the careless and sometimes accidental ways that Trump and Biden, respectively, did are never let off the hook, nor given the kind of understanding, empathy, and excuse-making both of those presidents have benefited from.

Take Asia Janay Lavarello, an ex-Pentagon employee who, while assigned to the US embassy in Manilla, took classified documents back to her hotel room to help her work on a thesis, which she had been doing from the embassy’s secure information facility until COVID shut things down. Lavarello took two days to return the documents after a partygoer stumbled onto them in her room, and when she did, she returned them to a safe, not the secure facility. She also took a diary containing notes from a classified meeting back with her to Honolulu.

Did Lavarello benefit from commentators defending her and explaining why her infraction was “no big deal” and bore “no comparison” to those who took classified documents with more fiendish motives? Of course not. She got three months in prison and a $5,500 fine, as the Democratic, Biden-appointed US attorney who prosecuted her made it exceedingly clear that the mere fact that it was an accident didn’t matter, because “government employees authorized to access classified information should face imprisonment if they misuse that authority.” The law enforcement officers who worked on the case similarly cast it as an example of their “unwavering commitment” to bringing to justice those who put “lives and the US national security at risk,” and Lavarello’s case was later directly cited as a reason to indict Trump.

Or look at another case: in 2009, twenty-two-year-old sailor Kristian Saucier took a bunch of photos of classified areas of a US nuclear submarine so he could one day show his family and future kids what he did when he served in the navy. He got a year in prison, and upon release could look forward to three more years of electronic monitoring under supervised release, six months of which would be spent in home detention.

There are so many more cases like this: the US Navy member sentenced to forty-one months in prison for downloading and storing classified files onto a disc in his home labeled “My Secret TACAMO Stuff”; the CIA contractor who for “no nefarious purpose” copied classified information onto personal notebooks he took home, and got ninety days in jail; the FBI intelligence analyst looking at ten years in prison after she “put her country’s sensitive secrets at risk” by taking and storing hundreds of classified documents; the naval reservist who downloaded classified briefings and digital records onto his personal devices and took them home at the end of his deployment, earning himself two years’ probation, a $7,500 fine, and being stripped of and barred from security clearance.

In these and other cases, the Justice Department and law enforcement made clear that, though the individuals might not have had malign motives, nor even passed classified documents to anyone else, the fact that they broke their solemn oath and the danger their actions posed to US national security meant they had to be strictly punished. This is not to mention the many cases of civic-minded whistleblowers who leaked classified documents for patriotic reasons, only to have the book thrown at them or even be tortured.

So pick one: either mishandling classified documents is such a grave danger and crime that anyone who does it should be prosecuted under any circumstances, in which case both Trump and Biden should probably serve short stints in jail and be barred from holding security clearances, or it doesn’t matter and we should go easier on those whose violations are “inadvertent” and “not intentional,” in which case those, like Biden, who took home or otherwise improperly handled classified documents should be pardoned or have charges dropped against them. In a democracy, the way the law applies shouldn’t depend on the social status of the offender in question.

There is obviously a healthy dollop of hypocrisy from all sides here, especially given Biden’s history of aggressively going after leakers and even government employees who have done exactly what he’s done here. Even John Heilemann had to acknowledge on pro-Biden MSNBC the inconsistency with which their segment of the media has treated Biden’s infraction compared to Trump’s.

But the real scandal is that this is just one more instance of a poisonous trend in American society where those lower down the ladder are treated far differently under the law than those at the top; where poor people are over-targeted for audits as the superrich pay little to nothing in taxes; where you can go to jail for murder but be celebrated after launching a war that kills many thousands; where elites face no legal accountability for plotting to steal an election but deluded low-level protesters are convicted for trespassing or for merely making hyperbolic internet posts about doing drastic things to stop a coup.

This is what we should be talking about when it comes to both Trump and Biden’s scandals. Unfortunately, it’s more than likely they will remain fodder for the never-ending partisan food fight that defines US political discourse, with little mention of the power and wealth imbalances that warp the justice system.