What are 'classified documents'? Andy McCarthy explains | The Trey Gowdy Podcast

foreign [Music] Federal prosecutor unafraid to call it as he sees it that's one reason I really really like having them on you are welcome to agree or disagree with his analysis I just thought we would all benefit from hearing his answers to what I imagined or some of your questions and I know that there are some of my questions and I'm also quite sure that Andy McCarthy follows politics I mean it's hard to not follow politics and be alive in 2023 but I'm almost equally sure he did not go to law school or join the U.S attorney's Office to specialize in politics so to the extent politics makes a legal question relevant or not relevant I will ask it but beyond that I'm Gonna Leave the raw political analysis to others and focus on the law and the facts as best we can and then I will I will also add those of you who listen to my podcast know my wife knows a lot about the Bible Mary Langston knows a lot about the Bible I tend to get it confused with some other things that I have heard but I'm gonna take a shot at remember I think there's something about being a time and a season for all things under the sun there's a time and a season I guess to inflame people but there's also a time to educate them and there's a time to ratify what people already believe but there's also a time to challenge them and there's a time to explain and then there's Our obligation to try to understand when somebody who knows what they're talking about does explain it so with that welcome to you former a USA Andy McCarthy Trey great to be with you and I so appreciate what you just said I I have to say when I was a I was a conservative lawyer and prosecutor in New York my best friends in the U.S attorney's Office were liberal Democrats and I don't remember other than getting beers on a Friday night I don't remember any of that having anything to do with the day-to-day of the job which I think we also pride in trying to make as clinical and exercises that uh as it ought to be it really shouldn't matter what the politics of your prosecutor already more than the politics of your plumber you know um so I I appreciate that because I've always thought these are things that you can check at the door and just try to figure out what's what you know Annie I think we're gonna have to if we're going to make it long term I just I I don't think um I think prosecutors have an obligation to check it themselves and to your point the guy that sat beside me at the U.S attorney's office I had no idea his politics I suspected them because he went to Princeton but I didn't know until I ran for district attorney as a Republican and I'd left the U.S attorney's office because you had to to run and a partisan election and I got a check from him a big check and a note that said you are the first Republican I have ever donated to oh wow uh you were right that is what made that job special um all right I will Dive Right into this and I want us to try to imagine where we can that the indictment reads United States versus Jane or John Doe or United States versus president without a name to the extent we can and then if there are facts that that tend to influence your opinion because it happens to be president Trump you you are welcome to bring that in but I I just want like we'll start with this who creates classified material who designates material classified generally classified information is designated as such by an intelligence agency or intelligence official who has authority to do that under the executive order that uh has been I think it's it goes back trade of I want to say Eisenhower but it's been uh it's been tweaked over the years by various uh presidents I think the last time it was was under uh Obama and I don't think that was a very major tweak but there are certain officials in the executive branch and uh in the agencies that are basically referred to in federal law as the intelligence Community there are about 17 of them uh post 911 there was an effort to try to bring them under the uh authority of the of the National Intelligence office it used to be the the uh the CIA was nominally the head of the intelligence Community but it was too many hats for the director of the CIA to wear to be both the operational head of the CIA with all that entails in the way of operations and intelligence analysis and run the vast U.S intelligence community so now we have 17 different agencies you can quibble over whether adding yet another bureaucracy atop the ones we already had made things more or less efficient but it certainly did give us more authorized individuals they can designate Secrets um and the president is different from any other official in the executive branch uh in that only the president can declassify anything so for example the head of the CIA can declassify information that the CIA has classified if the FBI has classified information the CIA needs the FBI's sign off to declassify it if the CIA wanted to do that the president however who was the only official in the executive branch who actually has power everybody else in the executive branch is a is a delegate of the president who exercises the president's Authority at the president's pleasure which is why the president can remove anyone at will the president is the only official who can declassify anything all right let's imagine that you are the president and you want to see something from the Department of Defense or from I I assume the state department can classify material a CIA fill in the blank you're the president you want to see it walk us through how you gain access to that is there just one copy of it or there are multiple copies or let's say you want to see a battle plan that we're about to invade Lithuania and you want to see that which I don't recommend but but if we do invade them you want to see it how do you get access to that so Trey there's a way that there's the way that things are supposed to work in theory and then there's the way they appear to work in practice as we see every time we have to look under the Rock at the sort of question you just asked so what the intelligence Community would like you to believe is that they manage well the inventory of actual classified documents that they have but I don't think they manage them well and what we've learned is things have become more digital over time they manage them even less well than they used to so I think that just to give people an idea there are nearly five million people in the United States who have security clearances between government officials defense contractors uh and and other contractors and the like so the reason we're so bad at keeping secrets is we have too many things that are classified and we have too many people who have access to classified information to the point where if you've actually ever had to do an investigation involving a leak of really any information but but classified information as well those are a very difficult investigations to do especially once temporally you get removed uh for any length of time from the time of the actual leak because it's so diffuse and there's some many people have access it just gets very difficult to uh to track it down so um what I have learned over the last couple of years is that there's three main I mean I've always known this but to your question in particular about how many copies of documents there are there are three main classification categories there's top secret secret and confidential and those are categories uh the differences in the categories are based essentially on how catastrophic it would be for National Security if the document fell into the wrong or the information fell into the wrong hands so the more damaging it is to the country the higher the the classification level and I think what we've learned is that with respect to to secret and confidential information which are the two lowest levels of classified information they are not good at all at limiting the number of copies that are made and recording the distribution of those documents which is why we we as we follow the news over the last few years we find that uh you know documents are popping up in the uh in the private property in private locations of former government officials you would think that that couldn't happen because if they did a good inventory of them they would know stuff was missing and they'd go claim it but the problem is that they don't have a good handle on how many uh copies of those documents there are they purport to do a careful job with respect to classify to top secret information and in particular top secret information that has additional limiting restrictions on it in terms of who has a need to know it and and has access to it one of the big misunderstandings that we see in a lot of the coverage about National security information and National Defense is that if a person has a security clearance we needn't worry about whether that person had access to various documents that's not true with respect to most of the most important top secret information even among people who have security clearances that is limited dissemination material so even if you betray had a top secret clearance if it was a special Access program and you weren't read into it it would be a problem to disclose that information to you before you were read into it those documents they are supposed to keep according to their own account of it this is the the top officials in the uh in the intelligence Community they would have you believe that they are very careful with respect to those documents about how many copies there are and recording who has them and whether they've been returned or not but it just seems to be you know all you need to do is read the news the last couple of years and you know that can't possibly be right because again not only have classified documents as a general class been found in the private locations of former government officials invariably when that seems to happen at least with the stories that make the news what we learn learn is that some of it is like the you know the crown jewels of the uh of the intelligence Vault so I I have to think that this is a pretty incompetent system just from the outside looking in all right you you have more than touched on this but I think it is so on the minds and of our listeners that I'm gonna at the risk of there being objection ask and answered I'm going to ask it again I want you to assume that I'm gonna pick on two of my friends I I want you to assume that Andy McCarthy is the president and that you ask John Radcliffe and Mike Pompeo to bring you two different pieces are classified information uh one is your uh ahead of is your odni ahead of your National Intelligence which you made reference to that's the post 911 group and Radcliffe was that and then Pompeo was the Secretary of State and the head of the CIA so they both bring you things I think most of us were under the impression that there's like an inventory there's a log that says okay Radcliffe went to discuss with President McCarthy today X so we would know on your last day in office that we needed to to maybe get that back from you if he dropped it off but I'm assuming that's not the way it works I don't think so I don't my impression is that number one the the habits of regiment probably vary from president to president and to I mean obviously the uh the officials whether it's Radcliffe and Pompeo or or other officials I think there's a limit to how much discipline they can impose on the system depending on who the president is I think in some administrations Trey the chief of staff uh and the uh and the secretary to the chief of staff have a much tighter grasp of the information flow than in other administrations for example my impression and this is just you know I had I had a little bit of a peek inside this but not much my impression is that the the bush 43 Administration was a pretty tight run ship with respect to National Defense information which would make sense because they were in power during the outbreak of War they did a shift of of a period of time when the justice department was kind of the kind of the tip of the spear encounter terrorism they tried to move it back to Washington and in particular to the administration because if you're going to treat it as a wartime issue it's a whole different ball game right so I think between the Chiefs of Staff that that Trump had and having someone like Kavanaugh who's now Justice Kavanaugh who was the um the secretary to the chief of staff and manage the paper flow I I think that gets handled pretty efficiently then there were other administrations where you have a lot of um you either uh have a situation where they don't prioritize National Security as much as other issues or um they're not as careful about paper flow or there's a lot of turnover um but I think that that in those situations things don't get handled and recorded the way uh they wouldn't an Administration that made that a priority but I do think it varies in president to president we switch gears what is a presidential record question since it's come up in um it's come up so often in the last week plus uh it's almost easy to say what is it one then what is one because we have an act that's called the presidential records act that defines what presidential records are but it takes pains to exclude certain government records from that and in connection with the recent indictment the most important exclusion obviously because we're talking about classified information here our agency records so to the extent that the act that we're talking about the presidential records act defines what a presidential record is it tells you up front what it's not which is that it's not the records that are generated by agencies and they go to uh Great Lengths not only uh to spell that out but also to refer you to other definitions in federal law so that you know exactly what they're talking about when they say an agency and exactly what they're talking about when they say a record so we can comfortably say that records that have been generated by the agencies of the intelligence Community which which reflect for example uh intelligence analyzes or operational details or methods and sources of intelligence gathering those would not be presidential records now here's where it gets complicated the president can according to the presidential records Act presidential records are a documentary and similar type material so the the broad definition of documentary includes things like tape recordings right that are generated during the presidency the president can both generate those documents when I say the president I mean the White House the White House staff the people who are working directly for the president in the day-to-day administration of the government they generate those materials but they can also receive them and so for example to go back to your uh original example John Radcliffe or Mike Pompeo show up to a meeting with the president say a morning security meeting and present him with a document the president looks at the document not only reads it but annotates it makes some notes that he thinks are important by the act of doing that that has now become a presidential record it starts out as just an agency record but now it is both an agency record and a presidential record now importantly Trey what that means is not supposed to be an escape hatch to turn it into personal property that he can keep what it means is we now have not one but two bases for this to be kept in government archives on the one hand it's a presidential record and it remains that and on the other hand the annotated copy is a presidential record which has to be archived uh in the National Archives for presidential records presidential records under the definition are all documentary materials that are reflective of the governance carried out by the president whether it relates to National Security duties the ordinary duties of executing and and enforcing the laws of the United States and even the ministerial and ceremonial duties of the presidency it's a broad definition because the effort post-watergate the presidential records act as 1978. the effort was to change the presumption in law that records that were generated basically by the White House during the course of a presidency were the property of the president which they were up until the Nixon Administration and now were to be pursuant to this act of Congress the property of the United States so the idea is to capture everything that could be in the way of an official document that reflects the way the presidency was carried out that is reflects everything from the most important matters of governance to the least important matters of governance as long as they're matters of governance and what's excluded from this definition of presidential records is not just agency records but there is a category which is called personal records and what personal records are are items in the nature of a journal or a diary that the president keeps for his own uh personal purposes uh that do not become part of the archives of the United States although there are Provisions in the law which which are aimed at the potential that the archivist and the president could disagree on what is a personal record that the president wants to keep in other words the the plan of Congress was that the president was going to work together with the archivist uh in good faith to figure out what should be archived and what the president could keep as personal property uh but complication in all this I may be jumping ahead of where you want to go now but the complication in all this is we have a District of Columbia court case which suggests that during the course of the presidency the president uh under the presidential records Act is the final determinator of what is personal and what is presidential I think that is an over interpretation of that case because it it's really defied by the text of the statue

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Id: DxNS1bKlJts

Length: 21min 50sec (1310 seconds)

Published: Sat Jun 24 2023