Did President Joe Biden indeed set things in motion for the indictment of his predecessor? Yes, he did — over four decades ago — and I was an accomplice.
Please let me explain.
In the late 1970s, then-Senator Biden was chair of the Senate Intelligence Committee’s Subcommittee on Secrecy and Disclosure. Back then, accused spies and rogue agents could cast a broad net in demanding that classified documents and testimony be used for their defense. Even if the documents and testimony were found inadmissible after review by the judge, damage to the national security would be done once they were revealed in the public trial guaranteed by the Constitution.
According to a 1978 subcommittee report, “So long as there is a real threat that prosecution of the defendant may reveal sensitive information in the course of a trial, he or she may engage in this ‘gray mail’ to avoid prosecution.” The report goes on to describe how spies, murderers and drug dealers all used graymail to escape prosecution. For example, in 1973, an intelligence source in Thailand was indicted for illegally importing over 60 pounds of opium into the United States. The prosecution was dropped because the CIA feared that its clandestine operations in Southeast Asia would be exposed at trial. The Biden subcommittee concluded that legislation was needed “to facilitate the enforcement of espionage statutes and thereby protect our national secrets without jeopardizing constitutional principles.”
Keith Raffel
So what was my role in all this? I joined the staff of the Senate Intelligence Committee as a 26-year-old newly minted lawyer in 1977. By the next year, the other two counsels to the committee had left as had the chief author of the subcommittee report. So suddenly there I was, the senior counsel on the committee working to write and pass the recommended legislation. Under Sen. Biden’s direction, I worked to hammer out a bill in negotiations with congressional staffs, the Justice Department, the CIA, the American Civil Liberties Union and others. The senator introduced the Classified Information Procedures Act on July 11, 1979. It passed both houses of Congress and was signed into law by President Jimmy Carter on Oct. 15, 1980.
It’s as if Sen. Biden anticipated the former president’s misdeeds four decades before they were allegedly committed. Of the 37 counts in last week’s indictment of the former president, 31 were for violations of section 793 of title 18 for willful retention of national defense information. In 1978, the subcommittee report had pointed out the dilemma the prosecutors would face in 2023: “In a prosecution under section 793 of title 18, it is necessary to prove that the information passed will actually damage the national security or be of aid to a foreign government.” That of course means “it becomes necessary to explain to the jury, and therefore to the public and to the intended recipient, the significance of the information passed.” In other words, trying the case undercuts the rationale of the statute which, after all, is to keep national defense information secret!
Under the Classified Information Procedures Act, Donald Trump’s defense must alert the government to classified information it plans to introduce in open court before the trial begins. Once the government sees what the defense will introduce, it can decide whether to contest the introduction of anything classified. Moreover, any appeals as to admissibility and relevance can be made pretrial. Without knowing what secrets might be revealed in open court, chances are good that, as with the Thai drug smuggler, the government would have feared proceeding to trial, and hence there would have been no indictment. The prospect of a former commander in chief sitting on the witness stand spouting every secret he knew, whether relevant or not, could not be risked. The safety of the country — and its military personnel and human intelligence sources — would be paramount.
President Biden has publicly declared he’s been hands-off in the investigation and indictment of his predecessor. Hands-off now, but his 40-year-old fingerprints are all over the case.
And he’s not the only one who appears to have anticipated the indictment. In 2018, then-President Trump pronounced that giving former executive branch officials access to “our Nation’s most sensitive secrets long after their time in Government has ended … is particularly inappropriate when former officials have transitioned into highly partisan positions.” That same year, he even signed a bill extending the penalty for “unauthorized removal and retention of classified documents or material” from one to five years. Whoops!
In Keith Raffel’s checkered past, he has served as the senior counsel to the Senate Intelligence Committee, started an award-winning internet software company and written five novels, which you can check out at keithraffel.com. He currently spends the academic year as a resident scholar at Harvard. To find out more about Keith and read features by other Creators Syndicate writers and cartoonists, visit the Creators website at creators.com.
