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What we know about the classified documents found in Biden's think tank

MARY LOUISE KELLY, HOST:

Drive past the Penn Biden Center here in Washington today and you will see camera crews out front, reporters taping stand-ups. That is because of the discovery of classified documents at the Washington think tank. It was founded by President Biden. He occasionally worked out of that office after leaving the vice presidency in 2017 and before he launched his presidential campaign in 2020. Now, we know very little about these documents. We do know that the Justice Department is reviewing them, and we know they are causing quite a stir. So let's bring in NPR's Domenico Montanaro and Greg Myre from our Washington and National Security desks. Welcome to you both.

DOMENICO MONTANARO, BYLINE: Hey there.

GREG MYRE, BYLINE: Hi, Mary Louise.

KELLY: All right, Domenico, what else do we know, for sure, at this point?

MONTANARO: Well, we know that it was the president's personal attorneys who discovered the materials and turned them in. They were moving some boxes out of an office that Biden had used sporadically after he'd left the White House as vice president. And they noticed some documents with some classified markings on them and then turned them in. Now, the archives weren't even looking for these documents, but they were discovered shortly before the midterm elections. There are a lot of questions here. How did they get there? Why were they there? Did Biden bring them? Did he know they were classified?

KELLY: Yeah.

MONTANARO: The White House says he didn't know. But this is a very different situation than former President Trump, who had over 160-some-odd documents that were at his home in Florida at Mar-a-Lago.

KELLY: Well, I was just going to ask about that because that will be the foremost question on a lot of people's minds, the parallel being, OK, classified documents - apparently, where they were not supposed to be - in the hands of a former president or a current president. Talk a little bit more about how this is or is not like the Mar-a-Lago case.

MONTANARO: Yeah, it's completely different. And I think that, first of all, we shouldn't make this something that's an equivalent. You know, it's just not. I mean, not only the number of pages, but it's not completely unusual for classified documents to wind up leaving an administration. It really - what a lot of federal prosecutors and former federal prosecutors talk about is - what's important is the intent here. And clearly, the Biden team are the ones that discovered this and voluntarily turned them over, weren't even being searched for. You know, former President Trump wound up saying on his social media platform that he can't wait for the FBI to raid Biden's multiple houses. Well, there's a big difference here in the fact that they don't have to raid his houses because they're the ones who turned them over. So there's a big difference in how this is being played out in public. Still some open questions, obviously, but the two are not even close to equivalent.

KELLY: Although they didn't announce it. We're learning about this because a news outlet broke the story - CBS. Was - it was not an announcement from the Biden team.

MONTANARO: Right. And we know that this took place shortly before the midterm elections. So it's certainly not something that the president was out there talking about. And, you know, Republicans will say Biden did criticize Trump for, you know, quote-unquote, being "irresponsible" with these documents. But again, these two things, just in scale and intent, very different.

KELLY: Greg Myre, jump in from the national security perspective. The point that Domenico just made, which I'll sum up as, this stuff happens sometimes, is that true? I mean, how common is it for an official to take classified documents when leaving office, whether accidentally or on purpose?

MYRE: Yes, right, Mary Louise. So I put this question to Glenn Gerstell. He was the former general counsel at the National Security Agency. He held that job for five years. So he did have to deal with some cases like this. Here's how he put it.

GLENN S GERSTELL: The number of times someone deliberately walks out with a classified document and takes it to non-secure spaces - their home, their automobile, whatever - is exceedingly rare. What's far more common is someone inadvertently walking out of the CIA, the NSA, the Pentagon, etc., with some classified document because it was accidentally paperclipped to the back of another document that wasn't classified.

KELLY: Greg, what are the possible legal ramifications, even if this was done entirely unintentionally?

MYRE: So lawyers that work in this national security space say that, generally, there should be some sort of investigation every time they learn that there's a classified document that leaves the place it's supposed to be. And they say everyone needs to be treated the same - can be a current president, a former president, any other official in government, the intelligence community, the military. But a key part of the investigation is the intent of the person who mishandled the document. And, of course, it can run the gamut. Was this person planning to give it to a foreign government, leak it to the media? Did the person refuse to give it back, or did they immediately own up and return the document? Again, here's Glenn Gerstell.

GERSTELL: I would draw a big distinction between those situations, in which someone inadvertently walks out with something and immediately turns it over upon discovering it, to circumstances in which the federal government asks the person who has the classified document to return it and it's not returned.

MYRE: So hypothetically, Mary Louise, let's imagine two people walk off with the exact same classified document, same material, but the legal ramifications could be quite different depending on what they planned to do with it or if they even knew that they had done it.

KELLY: Gotcha. Domenico, talk to me about the politics here, particularly with Republicans, as of this month controlling the House.

MONTANARO: Definitely, and you should probably expect to see some kind of investigation. They're already calling for that, potentially, into this situation and what happened. And that's perfectly within the government's normal role of oversight. It depends on how that's actually presented. Is it presented with the proper context? What is the cooperation from the White House, as well? And, you know, Trump and Republicans, politically, just from a raw politics standpoint, see this as a gift. You know, they think that it allows Trump and his allies to really muddy the waters here, especially ahead of the 2024 presidential election. Expect a degree of whataboutism, something that we've seen repeatedly, over and over again, and a lot of faux outrage despite, you know, how much different these two incidents are in scale.

KELLY: Greg, last word to you, and I want you to take a step back from this immediate situation. When we hear the words classified documents, the image that comes to mind is that it must be some high-level secret - a lot of the time, not so much. Speak to the systemic problem the U.S. government seems to have with the overclassification of documents, with too many documents being classified.

MYRE: This is a perennial issue. The government generates millions and millions of classified documents annually, and it's the default option for many officials, especially those in national security. You won't get punished if you classify a document, but there could be penalties if you fail to classify some sensitive information. We are seeing, broadly speaking, more declassification of older documents, but it can often take years or decades for this to happen.

I mean, you can go to the CIA website and find documents that have been declassified recently, but many date all the way back to the 1960s or '70s. And people in and out of government complain about this regularly, this overclassification. But it just seems to be a permanent condition. And as we're seeing now, it can create some real issues. We're trying to sort out the significance of these documents found at Trump's residence and at Biden's former office. And because they're classified, we just don't know what's inside them.

KELLY: NPR national security correspondent Greg Myre and senior political editor and correspondent Domenico Montanaro. Thanks, you two.

MONTANARO: Great to be with you.

MYRE: My pleasure.

(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.

Greg Myre is a national security correspondent with a focus on the intelligence community, a position that follows his many years as a foreign correspondent covering conflicts around the globe.
Domenico Montanaro is NPR's senior political editor/correspondent. Based in Washington, D.C., his work appears on air and online delivering analysis of the political climate in Washington and campaigns. He also helps edit political coverage.