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There is no legal definition for information that is "high classified." Instead, there are three classification levels based on the damage to national security if information got out.
The special counsel said President Joe Biden had 18 documents with "top secret" markings on them. That’s the highest of the three levels.
It’s unclear whether the special counsel found documents with color-coded cover sheets to signal they contained classified documents, which Biden alluded to in his remarks. But intelligence experts told PolitiFact that documents don’t need to have cover sheets to be marked classified.
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President Joe Biden fielded questions about his handling of classified documents after a special counsel’s investigation concluded that criminal charges were not warranted although classified documents were found in his Wilmington, Delaware, home.
"When you look back at this incident is there anything you would do differently now?" a reporter asked Biden at a Feb. 8 press conference.
Biden said he would have better overseen the transfer of materials, before comparing his case with former President Donald Trump’s.
"It wasn’t out like in Mar-a-Lago, in a public place. And none of it was high classified," Biden said. "It didn’t have any of that red stuff on it, you know what I mean, around the corners? None of that."
Intelligence experts told PolitiFact that there is no legal definition for information that is highly or "high classified." However, the special counsel report details that multiple Biden documents included classification markers for "top secret," the highest of the three levels.
Documents are classified based on how much danger the information’s unauthorized disclosure would cause to national security, according to the Congressional Research Service.
The three classification levels are, from highest to lowest:
Top secret: Its unauthorized disclosure would cause "exceptionally grave damage" to national security.
Secret: Its unauthorized disclosure would cause "serious damage" to national security.
Confidential: Its unauthorized disclosure would cause "damage" to national security.
Besides written classification markings, some classified documents can include cover sheets with colored borders and the classification markings in bold text. These markings signal that classified materials are inside.
"But not every classified document has a cover sheet; it just depends on the circumstance and what the document is," said Jeffrey Fields, a University of Southern California international security expert.
Government agencies reviewed Biden’s documents, and the special counsel report detailed each document’s original classification markings and the classifications after review. Some classifications were lowered; other documents that weren’t originally marked top secret were given a top secret classification.
The report lists at least 18 documents that originally had "top secret" classification markings. Thirteen of those continued having "top secret" classification after the review.
Five documents received "top secret" classification after the review.
The classification of five documents that originally had "top secret" markings were lowered after review.
(Special counsel’s report)
The special counsel noted another issue with notebooks Biden had that were filled with handwritten notes. The special counsel reviewed the notes and added some classification markings. Twelve of those handwritten notes included "top secret" information.
There is no legal definition for what counts as highly classified information. Biden did not clarify what he meant by "high classified."
"For a layperson I would consider anything that's labeled top secret as highly classified," said Gary Ross, an associate professor and the director of intelligence studies at Texas A&M University.
Besides the three classification levels, there can be other markings to signal how the information should be handled based on how it was obtained, Ross said.
Some of the documents Biden possessed, for example included "TS/SCI" markings, meaning top secret/sensitive compartmented information.
To see that information, someone would need top secret security clearance and have additional approval to access "sensitive compartmented information."
Fields said the term "high classified" is used loosely, leaving it open to interpretation.
"For me it would mean something TS/SCI but others might use it relative to something else — e.g. something SECRET compared with something CONFIDENTIAL," Fields wrote in an email to PolitiFact.
Bradley Moss, a Washington-based lawyer who works on national security cases, said Biden’s comment "was an ill-advised statement by the president and I cringe every time senior officials say things like that."
Moss said that documents marked top secret/sensitive compartmented information are "particularly sensitive."
As for Biden’s claim that none of his documents had the "red stuff on it … around the corners." Fields said Biden was probably referring to the "cover pages often put on top of classified documents to indicate that inside are classified materials."
Top secret documents have an orange border, secret documents have a red border and confidential documents have a blue border.
The special counsel did not mention finding documents with these cover sheets. But experts clarified that not every document has a cover sheet.
"If a document doesn't have the cover sheet on it, that doesn't mean that it's not classified," Ross said.
Biden said "none" of the classified documents found in his possession "was high classified."
There’s no legal definition for a document that is "high classified." However, according to the special counsel report, Biden possessed multiple documents with "top secret" markings, the highest classification level.
By definition, those top secret markings likely constituted information that was highly classified, experts told PolitiFact. That is the highest level of national security clearance.
We rate Biden’s claim False.
C-SPAN, President Biden Delivers Remarks on Special Counsel's Report, Fb. 8, 2024
PolitiFact, Trump indicted in classified documents case: Here’s the timeline, July 6, 2023
Congressional Research Service, The Protection of Classified Information: The Legal Framework, Feb. 2, 2023
The White House, Executive Order 13526- Classified National Security Information, Dec. 9, 2009
D.C. Security Clearance Consultants, Sensitive Compartmented Information (SCI), accessed Feb. 9, 2024
Phone interview, Gary Ross, associate professor and the director of intelligence studies at Texas A&M University, Feb. 9, 2024
Email exchange, Jeffrey Fields, political science and international relations professor at University of Southern California, Feb. 9, 2024
Email exchange, Bradley Moss, lawyer, Feb. 9, 2024
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