With the naming on Thursday of a special counsel to investigate Joe Biden’s possession of sensitive documents in the four-year window after he was vice president and before he was president, we now have the third national politician caught up in scandal over classified information. In 2016, Hillary Clinton was notoriously dogged by an FBI inquiry into her use of a private e-mail server while serving as secretary of state. FBI director James Comey’s decision in the final weeks of the presidential campaign to reignite this controversy with two public letters likely cost Clinton the presidency. On August 8, 2022, the FBI descended on Mar-A-Lago, the Florida home of former president Donald Trump, to investigate his alleged possession and possible destruction of government records. There’s an ongoing special counsel investigation whether Trump violated the law.1

The investigation into Biden is a godsend to the Republicans and Trump. It allows them to claim that everyone does it—and that Trump, if prosecuted, is the victim of a political witch hunt. Republican Representative Jim Jordan, ranking member of the House Judiciary Committee, took exactly this tack. On Sunday, Jordan tweeted, “Hillary Clinton mishandled classified documents. Joe Biden mishandled classified documents. But the only one who gets his home raided is President Trump—and he didn’t even do anything wrong!”2

Liberal political commentators have rejected these attempts to use Biden’s scandal to exculpate Trump. Writing in The Washington Post, Ruth Marcus argues, “From what is currently known, the Trump and Biden documents cases appear less similar than dissimilar.” While Trump “was on repeated notice from the feds that classified material was being sought [and] repeatedly failed to turn it over,” Biden, by contrast, has complied with investigations into his handling of the documents.3

These are important differences, but they also mean that any prosecution of Trump will be narrowly based: not on the possession of secret documents but on obstruction of justice. The government might win a court case on that ground, but the political waters have been muddied. The claim of a double standard will have some force—especially as it so perfectly fits Trump’s self-presentation as an antiestablishment foe of the Deep State. Far from hurting Trump, as liberals hoped, any prosecution on obstruction of justice for possession of secret documents will only deepen the passion of the MAGA faithful.4

Rather than put their hopes in the fool’s gold of legal prosecution of Trump on this issue, Democrats would do well to ask why the handling of secret documents looms so large in recent political history.5

The best answer to this question was provided in 1999, in a prescient book titled Secrecy, by the late Daniel Patrick Moynihan, then serving as senator from New York. The book was an outgrowth of the Moynihan Commission on Government Secrecy, which he presided over from 1995 to 1997. Moynihan traces the emergence of a culture of secrecy in the American government back to the First World War, showing how it metastasized during the Cold War. Afterwards, when the Pentagon and spy agencies were supposed to be downsizing, the number of documents classified as top secret only continued to proliferate. Writing about the decade following the end of the Cold War, Moynihan notes, “It is hard to see how fewer military officers and fewer classification authorities could result in a stunning 62 percent increase in new secret documents—almost 6 million in all, and all of them deemed threats to national security if ever disclosed. Such is the grip of secrecy entwined with bureaucracy.”6

The culture of secrecy grew and gained its stranglehold on the American government because the power to classify secret documents is a form of power. If bureaucratic warlords can decide that some information is top secret and only viewable by a few under special circumstances, they possess the ability not only to direct policy but also to avoid public scrutiny and punish whistleblowers.7

Moynihan provided a powerful portrait of the process that turns secrets into power:8

Departments and agencies hoard information, and the government becomes a kind of market. Secrets become organizational assets, never to be shared save in exchange for another organization’s assets. Sometimes the exchange is in kind: I exchange my secret for your secret. Sometimes the exchange resembles barter: I trade my willingness to share certain secrets for your help in accomplishing my purposes. But whatever the coinage, the system costs can be enormous.9

The system of secrecy empowered massive abuse of power by authoritarian figures like FBI director J. Edgar Hoover. This secrecy culture also fueled the paranoia of McCarthyism and Cold War extremism. It was the basis of the threat inflation that led the United States into Vietnam and other imperial adventures. Many in the public were late to oppose the Vietnam War because they assumed the government must have secret justifications that weren’t available for inspection.10

Because of this same culture of secrecy, the United States government also massively overrated the Soviet threat for decades, relying on covert documents of alleged high value and ignoring ample public evidence of the severe economic limits of Soviet power.11

Why was the American intelligence community—funded to the tune of many billions every year—caught so flat-footed by the rapid collapse of the Warsaw Pact and Soviet Union from 1989 to 1991? As Moynihan notes,12

The answer has to be, at least in part, that too much of the information was secret, not sufficiently open to critique by persons outside government. Within the confines of the intelligence community, too great attention was paid to hoarding information, defending boundaries, securing budgets, and other matters of corporate survival. Too little attention was paid to ethnic issues, both domestic and foreign. The Soviet Union, after all, broke up along ethnic lines. And much too little attention was paid to the decline of Marxist- Leninist belief, both here and abroad. The Red Scare was far less fearsome than many would have had us believe.13

Moynihan offered one of the most wide-ranging critiques of the American government ever made by an elected official. He ended his book with a call for a dismantling of the bureaucratic system of secrecy down to a bare minimum. While some of his recommendations for a quicker declassification were acted on, the broader culture of classification only grew after his report and book. The fact that the FBI and CIA kept secrets from each other likely contributed to the intelligence failure before the 9/11 terrorist attack.14

In the more than two decades since Moynihan wrote his book, other analysts have repeatedly echoed his arguments. Like Moynihan, they, too, have been ignored.15

Writing in the Daily Beast, David Rothkopf has provided a useful mini-anthology of these laments. For example, in 2013 Ronan Farrow complained in The Guardian:16

Trillions of new pages of text are classified each year. More than 4.8 million people now have a security clearance, including low level contractors like Edward Snowden. A committee established by Congress, the Public Interest Declassification Board, warned in December that rampant over-classification is “imped[ing] informed government decisions and an informed public” and, worse, “enabl[ing] corruption and malfeasance.”17

In an age where many bureaucrats and elected officials work from home at least part of the time, the likelihood of tripping over the wires of security rules is very high. As Rothkopf notes, the Biden scandal “hit home” with government officials18

because the U.S. government is awash in literally trillions of pages of classified documents, and the proper handling of those documents is a challenge for all who use them as part of their daily government work. In my 30 years in Washington, I have spoken to a number of officials who have accidentally taken classified documents home with them, perhaps tucked away in an otherwise innocent looking stack of papers or file folder. Because the penalties for doing so are so severe, the reaction is often deep anxiety bordering on panic.19

Rather than focusing on who is worse, Biden or Trump, we have an opportunity to finally achieve Moynihan’s dream of dismantling the classificatory bureaucracy. If some smart senators revisited Moynihan’s book, they would find compelling arguments for a cease-fire in the secrecy wars. Instead of prosecuting either Biden or Trump, why not disempower the bureaucracy that gains power by hoarding information hidden from the public?20