WASHINGTON — The documents from Pence are just the latest to surface: if you’re keeping track at home, the count is now up to at least 25 classified documents discovered among President Joe Biden’s possessions, according to CBS News, including papers from his time as vice president.
And this has, of course, drawn comparisons to the recovery of classified documents at former President Trump’s home last year.
So what kind of consequences could they be facing now?
THE QUESTION:
So what is the Presidential Records Act–and can someone actually face consequences for breaking it?
THE SOURCES:
- Presidential Records Act
- The National Archives guidance on Presidential Records
- U.S. Code and the Espionage Act
- Professor Michael Greenberger, University of Maryland Carey School of Law professor and founder of the University of Maryland Center for Health & Homeland Security
WHAT WE FOUND:
In the cases of the 45th and 46th presidents, and now the most recent vice president, the Presidential Records Act has come up a number of times in headlines related to these documents.
U.S. Code defines presidential records as materials or portions of materials “created or received by the president, the president’s immediate staff, or a unit or individual of the Executive Office of the president whose function is to advise and assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.”
Law since after the Watergate scandal, The Presidential Records Act means those official documents and records of Presidents and Vice Presidents belong to us, the citizens, not the official’s personal property.
The National Archives lays out guidance for how administrations should keep track of these records, and hand them off upon leaving the White House.
However, Professor Michael Greenberger explains, there’s nothing baked in to the law to force an administration to follow it.
“The Presidential Records Act imposes the application, but not a remedy to the United States to enforce that Presidential Records Act or to get the documents back one way or the other.”
“The assumption, I'm sure, was when they passed the Presidential Records Act that once they declared the rule, no president would be so brazen as to say, I'm not going to follow the rule.”
That’s why there’s also discussion of the espionage act--a criminal offense.
So that’s what the Department of Justice (DOJ) invoked in the warrant to retrieve documents from Former President Trump’s Mar A Lago Estate, when they say he failed to comply with the Presidential Records Act.
Simply put, the Espionage Act says that the president cannot make these highly classified documents available to the public because that would endanger the national safety, the Espionage Act, a violation of it, is a criminal act.
Because President Biden and now Vice President Pence are turning over documents voluntarily, Professor Greenberger explains there’s been no need thus far to use the Espionage Act. However, that could change, if it’s determined the documents found in their homes or office could compromise national security.
The DOJ has called on special prosecutors to look into both Trump and Biden’s handling of documents, Greenberger tells me he expects this might not be the last discovered document story, as officials work to get ahead of things and try to differentiate themselves from Trump’s situation.