With Classified Documents, the Real Divide Is Between the Powerful and the Rest of Us

It's not Trump vs. Biden: High officials play fast and loose with government secrets, but only regular people face harsh penalties.

Was President Joe Biden more irresponsible than President Donald Trump in mishandling classified documents? Should one be prosecuted? Both? Neither?

Let D.C. denizens hash out the treatment doled out to representatives of competing political factions over their ability to keep government secrets. The real divide is between the consequences faced by the powerful and those inflicted on the rest of us. Whatever happens to rival members of the political class, you and I would certainly face harsher punishment for breaking the rules regarding classified documents.

"Worth noting that the President seems to have absconded with more classified documents than many whistleblowers. For comparison, Reality Winner was sentenced to 5 YEARS for just one document," whistleblower Edward Snowden commented last week as attorneys and journalists were comparing the current president's cache of illicitly retained classified material with that of his predecessor. "Meanwhile Biden, Trump, Clinton, Petraeus… these guys have dozens, hundreds. No jail."

That's exactly right. Back in 2018, the U.S. Department of Justice boasted of the harsh sentence handed to Reality Winner, a former National Security Agency contractor, for sharing an intelligence report on Russian hackers' attempts to infiltrate U.S. voter registration systems prior to the 2016 elections.

"Reality Winner, 26, of Augusta, Georgia, was sentenced today to five years and three months in prison for removing classified national defense material from a government facility and mailing it to a news outlet," the Justice Department trumpeted. "Evidence presented at the change of plea hearing established that on or about May 9, 2017, Winner printed an intelligence report that was classified at the TOP SECRET//SCI level, and she removed it from the facility where she worked."

True, Winner didn't just take the report; she passed what she considered a matter of public importance to journalists. But that wasn't very different from the actions of David Petraeus, a retired four-star general and then CIA director who shared classified info with his biographer/girlfriend. He was charged in 2015 "with one count of unauthorized removal and retention of classified material," according to the Justice Department. His actions were treated with a lighter touch than Winner received.

"Former CIA Director David Petraeus, whose career was destroyed by an extramarital affair with his biographer, was sentenced Thursday to two years' probation and fined $100,000 for giving her classified material while she was working on the book," CBS News reported at the time.

Petraeus' relatively lenient treatment came before Winner's case. But former State Department employee Stephen Jin-Woo Kim was serving 13 months in prison at the time for similarly leaking classified information to a reporter. The investigation that led to his arrest was so over-the-top the Justice Department was compelled to rein in (at least for public consumption) surveillance of journalists.

"General Petraeus is admitting to disclosing NDI [national defense information] that was at least as serious and damaging to national security as anything in Mr. Kim's case," his attorney, Abbe Lowell, wrote to the Justice Department in 2015. "As we said at the time of Mr. Kim's sentencing, lower-level employees like Mr. Kim are prosecuted under the Espionage Act because they are easy targets and lack the resources and political connections to fight back. High-level officials (such as General Petraeus and, earlier, Leon Panetta) leak classified information to forward their own agendas (or to impress their mistresses) with virtual impunity."

Panetta? Yes, he too was a bit loose-lipped while serving as CIA director.

"Former CIA Director Leon Panetta revealed the name of the Navy SEAL unit that carried out the Osama bin Laden raid and named the unit's ground commander at a 2011 ceremony attended by Zero Dark Thirty filmmaker Mark Boal," Politico reported in 2013. "Panetta also discussed classified information designated as 'top secret' and 'secret' during his presentation at the awards ceremony, according to a draft Pentagon inspector general's report."

Panetta faced no legal consequences. But there's no reason he would have expected anything more than a slap on the wrist. The favorable treatment accorded the powerful relative to the harsh punishments inflicted on regular people for disclosing classified information were an issue long before Teams Blue and Red started playing "gotcha" over the treatment of government secrets.

"Government officials regularly discuss sensitive, even classified, information with reporters," Matt Apuzzo of The New York Times pointed out while discussing the disparate punishments for Petraeus and Kim. Whether or not those disclosures are punished has a lot to do with power and status.

"Over the past 20 years, dozens of military and civilian employees of the U.S. government have been punished for taking classified documents home from work without authorization," Walter Pincus and Vernon Loeb wrote in 2000 for The Washington Post. "But few of these incidents have been made public, and the penalties have been extremely inconsistent, according to current and former federal officials."

Military personnel faced legal penalties much tougher than those enforced against civilian government employees, the reporters found. And the higher you were in the hierarchy, the safer.

"There is a double standard. The more senior you are, the less chance you pay a heavy penalty," a former senior intelligence official told the Post.

The government's tendency to wildly overclassify innocuous documents or information the public has every right to know is an additional, but related, problem.

"When government information is improperly classified—particularly when the information could be embarrassing or reveal misconduct—it creates an added incentive for government employees to leak it, and the increased volume of classified information makes government secrets harder to keep," the Reporters Committee for Freedom of the Press warned in 2019.

Once again, those lower on the totem pole are most likely to face consequences for revealing, or merely "mishandling," documents classified as a matter of habit or to prevent high officials from looking bad. The high officials themselves will most likely get a pass, or a slap on the wrist payable out of their next consulting fee, for similar or more egregious revelations.

So pay less mind to debates over the relative handling of powerful political faction leaders when they take liberties with government documents. That's more their concern than yours. The real divide is in the difference separating the lenient treatment those powerful people can expect from the harsh penalties they would happily inflict on you.