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This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
FEMALE_1: Welcome to civil discourse. This podcast will use government documents to illuminate the workings of the American government and offer context around the effects of government agencies in your everyday life. And now your host, Nia Rogers, Public Affairs Librarian, and Dr. John Aughenbaugh, political Science Professor.
Nia Rogers: Hey, Aughie.
John Aughenbaugh: Good morning Nia. How are you?
Nia Rogers: I'm fine. I'm feeling a little burglary. How are you?
John Aughenbaugh: I'm thinking about stealing some stuff today. What do you think? Should I go out and start stealing some stuff today?
Nia Rogers: I think what you should do is drive to DC and take a tiny little hammer and smash the glass that's around the declaration minutes and bring it back here or the Constitution. I'd take either one. No, the declaration is probably in Philadelphia. I know the Constitution is in DC.
John Aughenbaugh: In DC.
Nia Rogers: You could bring it back and then we could have a Constitution reading. Won't that be fun with the original?
John Aughenbaugh: With the original.
Nia Rogers: Although the original is really hard to read because the Ss look like Fs.
John Aughenbaugh: Listeners, if you haven't picked up what today's episode is about other than Nia and I entertaining the criminal side of our personalities, we are going to talk about the notable thefts of government documents. This entire podcast episode originated because Nia came to me and said, hey, let's go ahead and create a podcast and talk about government documents and processes. We've done all these seasons, but we haven't talked about the fact that some of the government documents.
Nia Rogers: They get pillaged. They get taken by people who for a variety of reasons, either believe they should be the owner of the thing. Because some people are just acquisitive. In all those movies you see where people steal art, they have it in their basement. It's not because they want to tell people they have the arts, because they want to look at it themselves. They want to enjoy it. That's always what the super villain is doing. He's enjoying the fruits of his theft.
John Aughenbaugh: It's like the remake of the Thomas Crown Affair, where Thomas Crown played by Pierce Brosnan, rips off this famous painting. He brings it home and he puts it in his den. In the camera just pants to his face, and he's sitting there with a really expensive drink, and he's got this huge grin on his face.
Nia Rogers: He's just enjoying the painting.
John Aughenbaugh: Because it's in his home and nobody else gets to enjoy it.
Nia Rogers: That's one reason people steal. But the more common reason people steal, I think, is money.
John Aughenbaugh: Oh, yes.
Nia Rogers: I think there is this, side note before we get into these thefts, for listeners, you should know that antiquities, right things, old things, or important things in the world, there a black market for that.
John Aughenbaugh: All valuable stuff.
Nia Rogers: There's an underground market for that stuff where collectors will pay mucho dollars, many millions of dollars for certain things. If Aughie actually stole one of the five original copies of the constitutes like the ones that were done at the time, if he stole one of those and went to the underground market, he could retire the next day. He would be done. He would have so much money, he would have to move, actually he'd move to move to Thailand because they don't have extradition there. There is a buyer for that. If you let out the word that you had it.
John Aughenbaugh: In the black market yes. McKenzie would not have to worry about a college fund. Listeners, we're going to first start off with describing and discussing some notable thefts. By the way, you know there have been a bunch of notable thefts, that it happens with some regularity because the National Archives website has an entire page.
Nia Rogers: Web page, that's right.
John Aughenbaugh: Summarizing documents in individuals who have committed various thefts. Then we will segue into a discussion of the various federal laws that these individuals have broken.
Nia Rogers: By the by, this is not all that used to happen, but doesn't happen anymore thing.
John Aughenbaugh: Oh, no. It happens all the time, even today.
Nia Rogers: In our living memory. Not some of them, but some of them have happened while Aughie and I were alive and adult. It's crazy. Have you noticed a listeners that you don't hear about it a lot? These cases get buried in part because they don't want to encourage other people. Because if it comes out how somebody did something, somebody will go, that's a really good idea and they'll go try to do it. That's part of it. But also, part of it is the embarrassment factor for the government. They don't want people to know that something missing or there's some of that involved.
John Aughenbaugh: There are myriad reasons why if you have never heard of these examples.
Nia Rogers: There's a reason why.
John Aughenbaugh: There's a reason why. We're going to lead off with a married couple, okay? The Murphys.
Nia Rogers: Couple that commit crime together, stay together together.
John Aughenbaugh: Robert Bradford Murphy and his spouse, Elizabeth Irene Murphy. In 1963, they were arrested in Detroit and indicted on two counts for transporting from Cincinnati to Detroit stolen documents, taken from a number of federal government repositories, including Nia, you probably are already aware of this repository. The National Archives and Records Service, NARS.
Nia Rogers: NARS.
John Aughenbaugh: I just like saying that, NARS. Murphy visited NARS in August of 1962, where he examined and stole documents in a research room from the files of the Departments of Justice, War, and Navy. Bureau of Indian Affairs and other federal records.
Nia Rogers: Now, '62, think about what's going on in the world. In '62, you have the start of Vietnam. You have the Cold War. That's why you're seeing Justice War and Navy departments. What you're probably seeing are what he thinks of as private documents or proof of something or whatever.
John Aughenbaugh: He did his work, and I'm using the air quotes. He did his work during evening hours when there were only two staff members present. He would wait until they left to go on break.
Nia Rogers: Or the bathroom since people got to go.
John Aughenbaugh: He would steal the documents, the Murphys.
Nia Rogers: He also did something, which is, can I just say, is incredibly slick, which is if somebody else was working on something in the room, here's how documents work. Bill Newton talk to us about this when we talked about presidential libraries in a previous episode. What happens is you go into a place and you ask for a box of documents, and you have that box of documents or a series of boxes of documents, and you have those documents brought to your table. Well, other scholars are doing that too. If another scholar got up and went to the bathroom, he would sidle over and take something from their box. Which would mean that if anybody got caught or in trouble for it, it would be them not him. I'm going to tell Bill Newton he can never leave another box alone as long as he lives, but anyway.
John Aughenbaugh: The Murphys received 10 years in a federal prison.
Nia Rogers: They don't take this lightly.
John Aughenbaugh: No.
Nia Rogers: What's the big fuss about both Biden and Trump having documents. The government's serious about give us back our stuff. I don't know what you're thinking. You don't get to keep that.
John Aughenbaugh: By the way, listeners, one of the reasons why we wanted to do this episode is because of current President Biden, the allegations made about him taking government documents after he left service as Vice President, and then former President Trump. Because we got started thinking, we're like, okay, this can't only be the behavior of well known officials in the executive branch. Then I started doing a little bit of research, and, of course, I shared with Nia. You know the National Archives has an entire page about this, right?
Nia Rogers: Sadly, the National Archives has been hit many times.
John Aughenbaugh: Our next example is Charles Merrill Mount. I was vaguely familiar with this particular circumstance. Mount was an art historian in a portrait painter. He was arrested in 1987 for stealing documents from NARA, the National Archives and Records Administration, and the Library of Congress. He got nabbed because a bookstore owner in Boston reported to the FBI that Mount offered to sell the bookstore owner, a collection of civil war documents, including three letters written by Abraham Lincoln.
Nia Rogers: Which you're not going to just happen across.
John Aughenbaugh: Nobody is going to have these in their basement and you go ahead and sell them in whole sale.
Nia Rogers: Wholesale price. Look, I found these in Grandma's Bible tucked in the back, no.
John Aughenbaugh: Agents arrested Mount when he was showing up to deliver the documents. They got a search warrant and they found a safe deposit box filled with other stolen documents. He was charged with, and I actually looked this up to verify this. I want to make sure there was not a mistake on the website with stealing 400 documents, 400.
John Aughenbaugh: He received five years in prison, and he died in 1995.
Nia Rogers: Shortly after he got out of prison.
John Aughenbaugh: Yeah.
Nia Rogers: Four hundred documents. Now, the thing is when you consider a number of pages that the federal government has in its possession in the library of Congress.
John Aughenbaugh: It's miner state.
Nia Rogers: Four hundred is not even a rounding error. But that's a lot of work. That's a lot of work because you know he's not walking out of there with 30 at a time. He's walking out of there with one or two at a time.
John Aughenbaugh: Imagine the size of the safe deposit box the box.
Nia Rogers: It's the other thing I thought too when I saw that it was the safe deposit box. I was like, dang, what bank is that that the safe deposit box will hold 400 documents? That's 1987. That's within your and my living memory.
John Aughenbaugh: Our next example is Shawn Abitz, 2002. He was a curator with NARA, and he worked in the operations branch in Philadelphia. He was charged with stealing hundreds of documents and photographs, including signed presidential pardons.
Nia Rogers: Like it wasn't going to be noticed that those were missing at some point.
John Aughenbaugh: Yeah, because those are legal documents.
Nia Rogers: Those are things that people proof they would want they would want to be able to go back and look at. But it's pretty smart to get hired by them.
John Aughenbaugh: Yes.
Nia Rogers: Then you would have enormous access.
John Aughenbaugh: The thing that caught me about this example, and it's the reason why we included it in the podcast. The loss of documents were discovered in March of 2000 when a National Park Service employee notified the archives that a possible item from its holdings was on sale on eBay.
Nia Rogers: On eBay.
John Aughenbaugh: He didn't even go to the Black market.
Nia Rogers: He just went to eBay. Listeners, you may ask yourself, what's the National Park Service Employee doing on eBay looking for documents? The answer for that is that sometimes there are gaps in a collection, and you really do try to fill them by buying them from private sellers. The government regularly does that, libraries regularly do that, Cable library at VCU occasionally will do that. If there's a paper out there that's from or by or about Cable, we would be interested. James Branch Cable, we would be interested in having it because we're the keeper of his collection. I can see why somebody is on there and they're like, wait, that looks familiar.
John Aughenbaugh: Yes.
Nia Rogers: But I think it's interesting too that he actually had to pay restitution.
John Aughenbaugh: He had to pay $73,000 in restitution.
Nia Rogers: Which I imagine is nothing compared to what he made.
John Aughenbaugh: Made. Because if you're at a point where you have an eBay account.
Nia Rogers: You're just bold putting stuff up. How much have you already dealt in that year?
John Aughenbaugh: The example I knew the most about only because of the name of the person was Sandy Berger from 2000.
Nia Rogers: This was the only one I knew.
John Aughenbaugh: Sandy Berger in 2003, he was the former national security advisor in the Clinton administration. He took illegally classified documents from the National Archives on more than one occasion.
Nia Rogers: Wait, he illegally took classified documents. He didn't take illegally classified documents.
John Aughenbaugh: Yes, illegally he took. Yes.
Nia Rogers: Sorry, let's be clear. These were not classified illegally. They were classified properly.
John Aughenbaugh: Yes.
Nia Rogers: But he swiped them.
John Aughenbaugh: He illegally took.
Nia Rogers: Is he the guy who put them in his pants?
John Aughenbaugh: Yes.
Nia Rogers: I remember somebody wrapping them around their legs. Down their pants legs.
John Aughenbaugh: He folded the documents in his clothes so down his socks in his groin area, in his pants because he would get patted down, his suit jacket would get patted down.
Nia Rogers: The pockets. They'd check the pockets.
John Aughenbaugh: They would check the pockets, but they hardly ever checked his groin or socks area etc.
Nia Rogers: He learned what they were going to search and what they weren't?
John Aughenbaugh: Yes. Then he placed them under a nearby construction trailer for retrieval later on. He wanted the documents because he was going to write a tell all about how the Clinton administration, did its foreign policy. He was sentenced to 100 years of community service and probation.
Nia Rogers: Hundreds 100 hours.
John Aughenbaugh: Hundred years.
Nia Rogers: That would be awesome, 100 years of community service.
John Aughenbaugh: Yes, when you are dead, we're going to
Nia Rogers: Raise you from the dead make you do community service.
John Aughenbaugh: He was fined $50,000. He also had to pay over $6,900 for administrative costs as part of his two year probation. But here's the thing that really affected him the most. He lost his security clearance and his license to practice law.
Nia Rogers: Which makes sense. You don't want a guy who's been found to be doing that, to be practicing law. But I think it's interesting in security clearance, meaning he could not work for contractors, either.
John Aughenbaugh: Yes.
Nia Rogers: He's totally done.
John Aughenbaugh: Yes.
Nia Rogers: The price you pay when you do this stuff.
John Aughenbaugh: Can be severe.
Nia Rogers: Can be so high.
John Aughenbaugh: It should be a deter.
John Aughenbaugh: It ruins the rest of your life.
Nia Rogers: It should be deterrent. Don't you think that some of these people, it's the thrill. It's the hunt.
John Aughenbaugh: Yes.
Nia Rogers: It's a similar thing to the cat burglar like you were talking about Thomas Crown.
John Aughenbaugh: It's addictive.
Nia Rogers: I have it in my possession. It's mine.
John Aughenbaugh: Trying not to get caught. Our last example before we move on to the Library of Congress, because the library of Congress deserves just a special section of this podcast episode. In 2011, Les Waffen, he worked for 40 years at NARA. Much of the time was in the motion picture sound and video branch. He pleaded guilty in 2012 to the theft of 955 items from NARA, including original recordings of the 1948 World Series and a rare recording of the 1937 Hindenburg Disaster.
Nia Rogers: Can I just stop you and say, researchers use those materials?
John Aughenbaugh: Yes.
Nia Rogers: There are baseball researchers, Aughie is one of them. There are baseball researchers who go to these places to watch these films, to look at all things. From the mechanics of the players of the time to the crowd, to the stadium architecture, all of it is studied. If you're going to steal stuff, you should be stealing stuff that most scholars would not notice for many years is gone.
John Aughenbaugh: Yes.
Nia Rogers: I'm thinking the 1937 Hindenburg disaster. Are you kidding me?
John Aughenbaugh: Yes. That would be a [inaudible].
Nia Rogers: Why would you think that would not get noticed pretty quickly. Like what? But it wasn't. How did NARA find out?
John Aughenbaugh: Waffen tried to sell these items on eBay and a potential buyer recognized them as items he had donated to Nara in 1999.
Nia Rogers: Hey, these are familiar. I think I gave these.
John Aughenbaugh: Oh, I read that, and I was just like, oops. Because that's the only word you can go ahead and say is, oops.
Nia Rogers: Well, I'd really stay off of eBay. If you're going to steal stuff, stay off of eBay.
John Aughenbaugh: Yeah, go to the black market. Take a couple extra steps. You're already a criminal.
Nia Rogers: Is it going to hurt you to wait for a few extra days and try to sell it in a place where you won't get noticed? Hello, not that we're telling you to commit crimes. But if you're going to be better at it than this. Now, what that tells us though is that there have been crimes we know nothing about, because there were people who were better at it.
John Aughenbaugh: Yeah.
Nia Rogers: That's what this tells us. These are the dumb people who got caught. Can I just wax for a moment, think about the Library of Congress. There's no way for the Library of Congress to have any idea what's missing and what's not.
John Aughenbaugh: Because they have too many items.
Nia Rogers: It's so much stuff. While it's all cataloged, I'm not suggesting they're not doing the cataloging work because they are. It's all cataloged, but it takes up literally miles and miles of shells. One missing document out of something, if you were subtle and quiet, you'd probably get away with now, you wouldn't get away with stealing the Constitution. But I don't know. Like if he had just stolen one presidential pardon and then sold it to the family or sold it to somebody who would want particular item and would be willing to pay top dollar to get it?
John Aughenbaugh: But when you go ahead and take stuff.
Nia Rogers: 400 then you're like, well, you're bound to get caught at some point.
John Aughenbaugh: Now, the Library of Congress, good Lord. The number of thefts from the Library of Congress, one researcher went ahead and said, it's in the thousands. The Library of Congress in particular has had a problem since the late 1890s, the late 19th century.
Nia Rogers: Manuscripts, especially, because the Library of Congress collects manuscripts. If you're looking for scraps of the Gutenberg Bible, if you're looking for all kinds of things, the Library of Congress spends money and collects those things.
John Aughenbaugh: We mentioned Charles Merrill Mount because he stole from the Library of Congress. Throughout the 1990s, the Library of Congress has engaged in a rather if you will, protracted effort to go ahead and make thefts much more difficult.
Nia Rogers: They now have what's called closed stacks.
John Aughenbaugh: Yes.
Nia Rogers: Used to be that you could wander the stacks. You could go back and you could look at whatever you wanted to look out on the shelf, and the Library of Congress looks like this is a mistake. Now what you have to do is you have to apply to do research there, meaning you have to tell somebody ahead of time what you want.
John Aughenbaugh: Yes.
Nia Rogers: They bring it to the research desk, you go to the research desk, you sign it out, and you both look through it to agree what's there. Then you sign it out, they sign it out to you, and then when you bring it back, they look through the box again or the book or whatever to make sure that it is not damaged. Pages haven't been cut out of it and what have you
John Aughenbaugh: Correct me if I'm wrong, Nia, you don't leave the Library of Congress. You got to stay in the Library of Congress.
Nia Rogers: Correct. You stay in the reading room.
John Aughenbaugh: Yeah, you stay in the reading room.
Nia Rogers: There are things that they loan. They do loan some stuff out of the collection, but it's not the good stuff.
John Aughenbaugh: It's not the good stuff.
Nia Rogers: They loan popular fiction. They loan popular books where it's easy to get another copy, but they don't loan important documents. Hey, I'd like to borrow the Constitution for a few minutes. No.
John Aughenbaugh: Listeners, if you get a hard copy of a book, go to one of the first pages in the book, and you will see, there is a registration number for the Library of Congress. The Library of Congress gets copies of pretty much every book published in the United States.
Nia Rogers: Yeah. They hook out a lot of them. There's not a huge Harley Quinn romance collection at the Library of Congress. But if they believe that it is going to be a work of ongoing interest, then yeah. They also have four repositories, they are huge.
John Aughenbaugh: Huge. Yes. The other thing that the Library of Congress instituted listeners was they placed greater security measures on their staff. Because, a lot of these thefts have occurred because of the Library of Congress staff stealing materials.
Nia Rogers: Probably you don't get hired with the hope of being a thief. Probably what happens is you get hired and then you start saying, nobody will miss one or two. Nobody will miss this thing because there are so many.
John Aughenbaugh: Items in the collection.
Nia Rogers: There may be multiple copies of something. The Library of Congress has been known to collect multiple copies of things, and you may think to yourself, well, they won't miss one.
John Aughenbaugh: Yeah.
Nia Rogers: They've got eight. They still got seven after I'm done.
John Aughenbaugh: Yes. Now, listeners, you may be wondering, under what law or laws are these individuals prosecuted.
Nia Rogers: Under the library law. You think librarians have been mad at you for being late with something, you wait.
John Aughenbaugh: Yes.
Nia Rogers: Take our stuff, we're going to be very unhappy with you.
John Aughenbaugh: So we're segueing in here now to a discussion of what's called unauthorized retention use of classified government documents. Protecting classified information is paramount to safeguarding national security. When government officers, employees, contractors, mishandle classified documents, it risks significant harm to the United States and their interests. Basically, every Western developed country Nia, have similar laws to those in the United States. The first part of the podcast, we're talking about documents in the national archives.
Nia Rogers: The Library of Congress. The film archives.
John Aughenbaugh: Okay, et cetera.
Nia Rogers: We didn't even touch on portraits, by the way. That's a whole separate issue. It's art of the United States that has gone missing, which we will do another episode on at some point.
John Aughenbaugh: Now what we're talking about is people who steal classified documents, and then they use them for other purposes. They might try to sell them, or they might try to go ahead and expose what the government is doing, or they might sell this information to a foreign enemy, et cetera. The law in question is Title 18 of the United States Code, Section 1924, and it makes it a federal crime to knowingly remove classified documents or materials from their designated locations without authorization or retain them in an unauthorized area.
Nia Rogers: I put it in my desk drawer.
John Aughenbaugh: Yes.
Nia Rogers: That's not sufficiently secure to keep other people from seeing the document. What they're saying basically is, you can't go into a cafe with your file of classified documents and sit down and just start reading where anybody can walk by and see what you're looking at.
John Aughenbaugh: Some recent prominent examples of this.
John Aughenbaugh: Before the 2016 presidential election, Hillary Clinton, who was the candidate for the Democratic Party, it was alleged that she violated this law because she had a number of classified documents on an unsecured email server. She would be violating the part of the law about the storage and maintenance of classified documents.
Nia Rogers: Because Google is a private company and not protected under the federal.
John Aughenbaugh: Yes.
Nia Rogers: They're easily hacked relatively speaking. I'm not slamming Google it's just a fact.
John Aughenbaugh: It's not a secure government server. The two most recent examples are, again, former President Trump and current President Biden, but how he handled papers after he was vice president.
Nia Rogers: Ending up in closets, ending up in bathrooms, ending up on stages. None of those are good places.
John Aughenbaugh: Both of them were alleged to have violated, if you will, both prongs of this. One, they took documents without authorization. Two, both of them did not secure those documents in a safe place.
Nia Rogers: Actually, they're surrounded by people who weren't particularly interested in those documents and probably didn't go through them.
John Aughenbaugh: Yes.
Nia Rogers: For lack of interest.
John Aughenbaugh: Yes.
Nia Rogers: You can't depend on that. The government is basically saying no. That's why eyes only documents are read within certain offices and not within other offices. Certainly not in public areas.
John Aughenbaugh: Yes.
Nia Rogers: By government employees. I will say that I think that both Donald Trump and Joe Biden also probably unwittingly took documents. I think they wittingly took some documents and I think they unwittingly took other documents.
John Aughenbaugh: Yes.
Nia Rogers: Because I'm given to understand that the description of Donald Trump's boxes were, it was all piled in there together, his personal stuff and stuff that had been given to him and classified documents. It would not surprise me to find out that President Biden was in the same position. When you're moving somebody just picks up everything on your desk and shoves it into a box and if you have things mixed in I don't know that it was intentional in all of the cases where both of them had taken documents. On either side, I think that was a bipartisan effort at stupidity. I guess is what I'm trying to get at. Now, I do think that Donald Trump then showing those documents to other people may have then moved it into a different engagement.
John Aughenbaugh: Because with the law, so the law deals with unauthorized removal classified documents. It doesn't matter if you are an officer, an employee, a contractor, even a government consultant. If you possess classified documents and remove them without proper authorization, then you violated the law. If someone is found guilty of violating the statute they must have also intended to retain the documents at an unauthorized location. Again, this becomes really important in both the Biden and Trump situations because with Biden it's in his garage. With Trump-
Nia Rogers: It's in the bathroom.
John Aughenbaugh: Mishandling classified documents is a crime. If you mishandle, misuse or abuse classified documents, it could potentially harm the United States and its interests. This is the reason why former presidential candidate Hillary Clinton was investigated, because the allegation was she mishandled the documents. She knew that they were classified. She did not store them on a secure server thus she mishandled the documents. The statute lays out who this covers. The penalties Nia include fines, imprisonment up to five years in a federal prison or both. The surveyor.
Nia Rogers: But they don't necessarily mean the removal of your classification.
John Aughenbaugh: Well, that could be part of the negotiation of your punishment.
Nia Rogers: But it's not necessarily automatic.
John Aughenbaugh: That's correct.
Nia Rogers: Because that would prevent you then from being president again, wouldn't it? If you couldn't see classified documents? Effectively wouldn't that?
John Aughenbaugh: Well, effectively could, but constitutionally the answer is no.
Nia Rogers: Sorry. I guess I mean effectively. You would be ineffective as president if you could not see classified documents. But that's off the table. That doesn't necessarily mean you'll lose your classification status?
John Aughenbaugh: Now first, to be convicted, the government must prove beyond a reasonable doubt three elements and this is actually written in the law, Nia. The defendant was a government, officer, employee, contractor, etc. The first thing that the government has to demonstrate is you fit if you will these employment classifications.
Nia Rogers: Who lawfully had custody and control of the classified documents is the other part of that.
John Aughenbaugh: That's the second part. You unlawfully and knowingly remove such documents from their designated locations. Then the third part is they intended to retain such documents at an unauthorized location. In part, the government has to show intent. For instance, listeners recall that special counsel Robert Hur concluded that Joe Biden did not intentionally take these documents.
Nia Rogers: Stash them away.
John Aughenbaugh: Stash them away in part, because according to her, Biden was, what's the word I'm looking for? He didn't have the mental ability.
Nia Rogers: Cognitively impaired.
John Aughenbaugh: He was cognitively impaired. He was a forgetful old man.
Nia Rogers: This is where we get that he couldn't remember the day his son died.
John Aughenbaugh: That's going to be part of the difficulty for Jack Smith, in trying to prosecute Donald Trump. Was his intent to if you will remove such documents from their designated locations and keep them at an unauthorized location?
Nia Rogers: I think he'll have an easier time because Donald Trump showed them to other people.
John Aughenbaugh: Yes.
Nia Rogers: He showed deliberate I have this thing. Not, oh crap, I should give this back, but I have this thing and isn't it interesting to read. But the problem I think for Jack Smith is that Donald Trump believes that anything that his hands touch belongs to him. In terms of intent, what do you do with somebody whose belief system is if it has been in my presence it is mine? That's like taking a thing away from a toddler. You try to do that. The screaming and crying. You're going to give that thing back almost immediately whatever it is.
John Aughenbaugh: Yes.
Nia Rogers: There's going to be an interesting intent. Counter argument to that is, Donald Trump is used to owning whatever is in his presence. He may honestly believe that as president, he has a right to certain documents.
John Aughenbaugh: Smith is going to actually have to call people to testify that will speak to former President Trump's intent. Because I seriously doubt that former President Trump, if this does go to trial.
Nia Rogers: Will testify.
John Aughenbaugh: Will testify.
Nia Rogers: If his lawyers did have him testify, that would be bonkers.
John Aughenbaugh: Remember listeners. The district court judge hearing this case has declared that the charges should be dropped because the appointment of special prosecutor Smith was unconstitutional.
Nia Rogers: Right. We'll see where that goes.
John Aughenbaugh: But another element to all of this is what is classified information? Yes.
Nia Rogers: Can I stop you there for just a second?
John Aughenbaugh: Yes.
Nia Rogers: You know what? I think it's going to come in later. Actually. I think my question is going to come in later. My question is Edward Snowden, and I think he violated something different. Because he didn't have some of these elements.
John Aughenbaugh: Listeners may be wondering what is meant by classified information. Nia, you and I have been using that phrase throughout the podcast episode.
Nia Rogers: We do have a previous episode on over classification.
John Aughenbaugh: That's right. Because one of the criticisms of the United States federal government.
Nia Rogers: Is that they classify a bunch of receipts. Like, come on. They classify molecules moving in the air like no.
John Aughenbaugh: No.
Nia Rogers: That is not how this works.
John Aughenbaugh: Classified information refers to data or material deemed sensitive to the national security of the US government. This includes written documents, computer files, emails, and other digital formats. This again, is in the same law 18 U.S Code Section 1924. Now, within classified information, there are three levels of classification. We touched upon this in the previous podcast episode. But in short, you have confidential, secret, and top secret. Now, quite obvious as those words would suggest the most severe, the highest form of classification is top secret. The law also defines what is meant by unauthorized removal. This is where Edward Snowden was charged. It focuses on the illegal act of taking classified documents or material out of their designated storage location or facility without proper authorization.
Nia Rogers: This includes a government server?
John Aughenbaugh: Yes.
Nia Rogers: Of electronic data?
John Aughenbaugh: Yes.
Nia Rogers: Which is what Snowden did, and what Private Manning did.
John Aughenbaugh: That's right. The infamous Wikileaks, controversy. Then it also defines what is the retention of classified material. Keeping or holding onto classified documents or material beyond the authorized period or without proper clearance. Again, both President Biden and former President Trump have been investigated for violating this part of the statute.
Nia Rogers: Now, just as a side note, some of the people who we discussed at the beginning of the podcast were not accused of this because what they took was not classified documents.
John Aughenbaugh: That's correct.
Nia Rogers: They were just accused of straight up theft.
John Aughenbaugh: Theft, yes.
Nia Rogers: There's a difference between theft and classified document theft. The level of punishment is much higher for classified documents theft. Which is why, what was his name? Sorry.
John Aughenbaugh: Sandy Berger.
Nia Rogers: Sandy Berger who was taking classified documents ended up with a different sentence and a much higher penalty to pay, losing your classified access and losing your law license. As opposed to, I stole the 1937 Hindenburg film. You're just a crappy person who took that from the rest of us.
John Aughenbaugh: Yes.
Nia Rogers: You will be punished as a thief. But not as a classified. These are two different kinds of crimes. What you're stealing from the Library of Congress is not classified documents. The Library of Congress, note to listeners, does not have classified documents.
John Aughenbaugh: No.
Nia Rogers: They are not housed there. They're housed in secure locations, and the Library of Congress is not considered a secure location for obvious reason.
John Aughenbaugh: Yes. It would defeat the purpose of the Library of Congress.
Nia Rogers: Which is to be open to the people. The theoretical Library of Congress mission is to balance keeping of stuff with people's access to stuff. The American population should be able to have a national library where they can go and see things or read things or do things. That's the whole underpinning of the Library of Congress. Even though it's of Congress, it's really of the people. Whereas the classified document like Snowden didn't hop over to the library of Congress and do stuff. He did that on protected Department of Defense servers.
John Aughenbaugh: Yes.
Nia Rogers: Or NSA servers. I can't remember who owned the server. But anyway, it was theoretically protected.
John Aughenbaugh: He worked for a government contractor, and he became aware of a secret surveillance program instituted by the Bush 43 administration after the 9/11 attacks. The legal justification that the Bush administration made was that it was authorized per the authorized use of military force and the Patriot Act.
Nia Rogers: Homeland security.
John Aughenbaugh: His thought was, I wonder if the American people.
Nia Rogers: Would be happy with this if they knew that every single one of their phone calls was being retained.
John Aughenbaugh: It was being retained for aggregate data, so what the federal government was trying to figure out was, how did terrorists communicate, fund, coordinate the 9/11 attacks?
Nia Rogers: Can we prevent it in the future?
John Aughenbaugh: The problem for Snowden was.
John Aughenbaugh: He wasn't authorized to remove that data from the computer servers. He didn't get charged for releasing the information, he got charged for removing it.
Nia Rogers: It's not a good look that he ran to Russia afterwards. I'm not saying anything about him as a person, I don't know him, but it's not a good look. But if you and I do this, what should we know?
John Aughenbaugh: Well, there are two things that if you get charged with violating this federal law. One, the government does not have to prove that the removal or the retention of the classified documents caused any harm.
Nia Rogers: You could just take him home, not do anything with him, and you still could get in trouble?
John Aughenbaugh: Yes. Because the only thing that government has to show is that you acted knowingly, willingly, and without authorization. Part of Snowden's defense was he was being a patriot by providing transparency so that the public would know. Doesn't matter what your intent was.
Nia Rogers: He thought he was whistleblowing.
John Aughenbaugh: Yes.
Nia Rogers: One could argue he was whistleblowing.
John Aughenbaugh: Whistleblowing. But per this law.
Nia Rogers: It doesn't matter.
John Aughenbaugh: It doesn't matter what your justification is. You could be a whistleblower.
Nia Rogers: Did it harm anybody? It doesn't matter.
John Aughenbaugh: It doesn't matter. The government doesn't have to prove that you retained classified information to procure a conviction. All they have to do is show that you intended to retain it, whether or not there's any evidence that you did so.
Nia Rogers: Even if they can't find it in your stuff, if they know you took it, that's enough.
John Aughenbaugh: Yeah.
Nia Rogers: You and I can't be found guilty of this law because we don't have classified clearance.
John Aughenbaugh: We don't have access to classified information.
Nia Rogers: We can be accused and found guilty of theft if we go stole something from the the Library of Congress.
John Aughenbaugh: Back to your example that led off the podcast, if I did go up to the Library of Congress, broke the glass and took one of the remaining copies of the original constitution. Yes, I could be prosecuted for theft, even if I did not intend to sell it, make money on it, etc.
Nia Rogers: Even if you were just going to take it home and hug it at night or you're going to take to class and read it and you'll all flourishing, we are going to read the constitution in its original form.
John Aughenbaugh: It wouldn't matter.
Nia Rogers: You wouldn't be guilty of that second law of 18 USC 1924. You just be guilty of plain old stupid theft.
John Aughenbaugh: That's right.
Nia Rogers: No, that's better because you're still going to prison. But it's better in the sense that you weren't endangering national security by stealing the constitution. Because the constitution will continue to exist even if there are no original copies. It's propagated so much.
John Aughenbaugh: It's all over other federal government websites.
Nia Rogers: All that's going to do is just peeve the people who are in charge of taking care of it and guarding it because they're all going to get fired.
John Aughenbaugh: They're going to be like, how did this college professor just walk through.
Nia Rogers: How this chuckle head get the constitution? What were you guys doing? Well, we went on a break.
John Aughenbaugh: How did he come in with a ball pen hammer and just go ahead and break the glass and just take it and just walked right on out with it. But anyways, listeners. Again, understand that whether or not you're taking stuff from the National Archives, the Library of Congress, or if they're classified government documents, the US federal government takes that behavior seriously.
Nia Rogers: They can and will prosecute if they can figure out who you are.
John Aughenbaugh: Yes.
Nia Rogers: You better be good. Because if you're not good and you get caught, Sandy Berger, or whoever the penalty that you will pay and the public shaming that you will have. These cases also there's a level of that involved of, what makes you think that you have the right individually to take what belongs to all of us?
John Aughenbaugh: Yes. The other thing is to, listeners, if you're engaged in the garden variety theft of documents from the National Archives or the Library of Congress, don't try to sell it on eBay.
Nia Rogers: No kidding. Be brighter than that. If you're going to do it, do it where we will never know. But see, that's also part of it, too, is there's some thing in people where they want people to know they got away with it. It's not daring if nobody knows you did did it. If I climbed Mount Everest tomorrow, which, by the way, would be a miracle. But if I climbed Mount Everest tomorrow and nobody saw me, is it really an accomplishment? It is, but it isn't in some ways, because part of the reason people take those risks is for that psychological reward. Even if nothing else among other thieves to go dude, that was awesome.
John Aughenbaugh: Yes. Your friends aren't going to believe you unless there is the purp walk of you being led into a federal courthouse.
Nia Rogers: I guess Aughie really did steal the constitution. In some ways, I'm proud.
John Aughenbaugh: With the bracelets on and your hands behind your back.
Nia Rogers: But please don't do this. We are not advocating theft. Also, if you have classified clearance, please think about that before you make that choice. Yes, I understand whistleblowing and I understand the importance of that by the same token, the penalties you will pay will be inordinately high and you won't be the only one to pay them, your family will pay them as well. Not that anybody will hurt your family if I'm not saying that the government doesn't break your family's kneecaps or anything, but the humiliation spreads from you, change to others.
John Aughenbaugh: The shame in these things is with your family members, your close friends, etc.
Nia Rogers: Just think about it before you do it. Because we do know lots of people with clearance and we are not encouraging you to do this. Although if you do steal the constitution, Aughie will pay you for it.
John Aughenbaugh: No.
Nia Rogers: He will. He pay you whatever he's gotten in his wallet, which is probably like $2.84, but I mean seriously.
John Aughenbaugh: I do not want to be charged with the receipt of stolen goods.
Nia Rogers: Because that's the offense at that point. Never mind.
John Aughenbaugh: Before this broadcast episode goes even further off the rails, we're going to stop right now. Listeners because we are employees of VCU, we are neither encouraging nor advocating.
Nia Rogers: We are actively discouraging you from any theft of any, and not just the Library of Congress, but any library. Don't steal library stuff. Come on.
John Aughenbaugh: Yes. Don't do that.
Nia Rogers: It's not cool. You're depriving other people of the opportunity to see it, and that's not nice.
John Aughenbaugh: This is information, particularly if it's not classified that should be shared.
Nia Rogers: The whole point of libraries is that we all get to enjoy it.
John Aughenbaugh: We're sharing them all.
Nia Rogers: Same as museums. We all get to enjoy it.
John Aughenbaugh: Don't steal paintings from museums and don't steal constitutions from the Library of Congress. That's the takeaway from today's nearly hour long discussion of theft of government documents. Thanks, Nia.
Nia Rogers: Thank you, Aughie.
FEMALE_1: You've been listening to Civil Discourse brought to you by VCU Libraries. Opinions expressed are solely the speakers zone and do not reflect the views or opinions of VCU or VCU libraries. Special thanks to the workshop for technical assistance. Music by Isaac Hobson. Find more information at guides.library.vcu.edu/discourse. As always, no documents were harmed in the making of this podcast.