welcome back to "face the nation." and we are back now with some analysis. michael morell is cbs ■national security contributor and deputy director of the saa. lucius outlaw is professor of law, and larry pfeiffer is director of the hayden center. good morning to all of you. i'm hoping you can give us a few bottom lines on what is a developing story here. larry, i want to start with you because you ran the white house situation room as a senior director. you know how the current president, when he was vice president, interacted with classified material. just blanket statement, anyone who keeps documents marked top secret in their personal

possession would face a high degree of scrutiny. when is it a criminal act? >> it becomes a criminal act, i think, when there is intention to remove the documents to a location. in my experience, 32 years in the intel community, time at white house, accidents happen. these are paper documents. people carry them in folders. you know, sometimes they walk out with them and they will discover they've taken them. when they discover they've taken them by accident, they will quickly return them or have somebody return them to appropriate location. and i think that's what happened here. >> why do you think that? >> well, just from at least what we've heard so far. it looks to me like somebody probably unknowingly took some mixed group of papers, threw them in a box, and then they got shipped off to the residence. i think we heard that some of the documents -- >> you think it's a staff problem, they also were touching this classified information? >> oh, i sincerely doubt joe biden himself threw these things

in a box and shipped them off to the white house -- i'm sorry, his residence. i'm sure this was a staff issue, some aide who in a hurry in the last days of the administration was just grabbing materials and throwing them in a box. i think we even heard it was some of -- some of this material was in boxes that included material about his son's funeral. they may have seen beau biden funeral arrangements and thought, let's put this in a box, not realizing there were other documents intermingled. >> mike morell, you were the deputy cia director. you know how to take classified material into your home in a secure fashion. i imagine not in a garage, necessarily, as the president said there. but for six years these documents were in private possession. is there a risk there? >> margaret, there is absolutely a risk any time there are classified documents that are not in a controlled facility. and as you said, there's a

number of years where these documents were not handled properly. so, there's absolutely a risk. i believe that the intelligence community needs to do a damage assessment, house intelligence committee has asked for that. they deserve it. just as they do in the case of former president trump. >> so, one of the questions that's coming up, and lucius, perhaps -- professor outlaw, perhaps you can weigh in here. this also came up with the trump case. if it's not the president himself packing up the classified material, if there are other aides, they also may have legal exposure here. we know that one of those staffers was questioned, kathy chung, who currently works at the pentagon. she was an assistant. is somebody like that here at great legal risk? >> well, there's always going to be some risk. it's really going to come down to intent. was there some kind of criminal intent or was this negligence or

even recklessness? i think that's what the department of justice is going to really weigh out. when it comes to the presidents, i really don't think the doj is going to go towards a criminal prosecution about classified documents because there's so many open legal questions about presidents and classified documents and whether or not those criminal statutes apply to presidents. garland and the doj know those questions will end up at the supreme court and they can have no confidence in a legal fight with trump, or even with biden, but mostly with trump, that they will be successful in a fight against trump at the supreme court about executive power and the use of power by trump. >> so, in both cases, the 45th president and the current one, you don't think there will actually end up being any prosecutions? >> i don't think there will be prosecutions in regards to criminal -- about classified information. the obstruction, that's a completely different story. and i think we already see signs, that's where the doj is

headed in terms of trump. when they served the warrant, the warrant application specifies actual criminal statue tuts their investigating. not any one of those statutes deal with classified materials. they deal with obstruction. i think that's the cleanest, best path because it doesn't matter if you're a president. you either obstruct or you didn't. you don't have presidential power to obstruct justice. i think that's the easiest and most likely course for the doj. >> so, larry pfeiffer, if you could weigh in here. we heard from dan goldman, congressman, that he thinks it's entirely appropriate in terms of how the white house is handling this and the president's private attorneys. should they be sending, in your view, lawyers with no security clearances to search for classified documents? and then should white house attorneys be involved in any way in this case? >> well, unclear people should not be searching through boxes looking for classified material because it now exposes

classified material to somebody who should not be seeing it. my understanding is some of these individuals may have had previous clearance which may atenute the situation a little bit. whether it's white house lawyers involved or not, i think that's the discretion of the president as to whom, perhaps, he trusts as an intelligence professional for 30-plus years, i think i would have liked to have seen an intelligence or security professional going and doing these searches, but, you know, it is what it is at this point. >> mike morell, when this issue came to the forefront with former president trump, one of the defenses of him is, well, there's overt classification and, therefore, maybe these documents aren't that sensitive. and news agencies, including cbs, reported, hundreds of these documents were very sensitive. what is your view here? is this a broader issue that two pretty significant men have had this level of issue handling classified information?

>> margaret, i think there is a broader issue but it's want overt classification. i worked at the cia for 33 years. i did not see information classified to a level where i questioned whether that was appropriate or not. i think the broader issue is now we have two cases of former white houses as they pack up to leave mishandling classified information. so, we have a legal review here by the special counsel. we're going to have a damage assessment on these documents by the intelligence community. i think we need a separate bipartisan task force that looks at how white houses handle classified information throughout an administration, but particularly at the end. and i think they need to make recommendations going forward so that these documents are handled with much greater rigor. >> much greater rigor, what does that mean? harsher penalties? >> no. i think it means that a special group of individuals, perhaps

from -- partly from the intelligence community, but also from the national security council, need to go through every box that leaves the white house at the end of an administration to make sure there aren't classified documents in it. >> professor, you know, some of the critics, and certainly part of the political framing of this is the lack of transparency with the public. which we talked with ed o'keefe earlier. it was cbs news that broke this story. and then the government acknowledged it. is that appropriate? do you think there's anything legally to back up the white house argument that they just couldn't say anything at all? >> right. there's a political question and a legal question. >> i'm asking on the legal. >> on the legal side, no. >> they could have. >> they could have with the public. what matters most legally is what did they communicate and when to the proper government authorities? was there a delay there? was there an attempt to impede any kind of investigation? that is what matters legally.

now, what they say in the public may shed light on intent if there's some other charges, but legally i don't think that puts them in any jeopardy that they chose to wait to tell the public something they already told the proper government officials. >> i ask you that because we often hear at the white house podium, this is about process, we couldn't go outside the process because it could impede an ongoing investigation. >> right. and they -- two things can be true. one, they don't want to impede the investigation but also they don't want to impact or negatively impact themselves politically or midterms or anything of that nature. two things can be true. >> right. two things can be true, absolutely. it is washington. there is a lot of gray and a lot of nuance. but, larry pfeiffer, in the case of trump it was more than 300 pages of classified information, as we talked about, higher levels and some sensitivity, prolonged legal back and forth. but to what degree does that matter versus that question of

intent? you know, you're giving the president the benefit of the doubt that this was an accident. the former president was accused of doing many things potentially with this information. >> well, i think the volume of the material could actually suggest intent. i mean, this was 300 classified documents among 11,000 other documents that were taken from the white house. that just doesn't happen by accident. there has to be some intent there. now, when this story first broke, i was one who actually was somewhat willing to give some benefit of the doubt because i've seen these accidents happen in the past. but as that story unfolded, it became pretty clear, and given the obstruction, given the reluctance to cooperate suggests there may be, you know, more criminal issues at play with the trump situation. >> and mike morell, we talked about this as well, the lack of clarity in some ways in terms of

the ability to declassified information. i've been talking in recent days to lawyers, too, aboutdoes ice president g to declassify versus a president. in your view, does there need to be more sort of clarity on what a president can declassify and when? >> so, the president can declassify almost anything. not everything, but almost anything that's been classified by the executive branch. the vice president does not have that authority. he's not claiming that in this case. if you want to go back, margaret, to what you said at the very beginning. in both of these cases, we have some top secret documents. that means that those who classified those documents believe that if they get into the wrong hands, there could be exceptionally grave damage to national security. so, we have to stay focused on this in terms of these individual cases, but how do we

prevent this from happening going forward? >> all right. mike morell, thank you for your analysis. professor larry, thank you as well for joining us. we will be right back. hi, i'm darlene and i lost 40 pounds with golo in just eight months. i gained an enormous amount of weight due to a medication i was put on. when i started the golo plan and taking release, i was surprised at how easy it was for the weight to come off. i've never done anything better in my life. i got this mountain bike for only $11. dealdash.com the fair and honest bidding site. this

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or if you had a vaccine or plan to. emerge tremfyant®. with tremfya®... ask your doctor about tremfya® today. sno snoou. we are joined by chris whipple, author of a new book about the biden administration, called "the fight of his life: inside joe biden's white house." good morning to you. >> good to be here. >> and you spent a lot of time working on this book over the past two years. and you met a lot of these characters who are so close to joe biden, the man and now the president. one of them, bob bauer, who is now the president's attorney in regard to this story we've been talking about for most of the show with classified documents. he also happens to be married to one of the close's advisers. what do you make of how this is playing out? and why is bauer the man to defend him here? >> well, let me come back to bob bauer in a second. i think this is a real problem

because there's just this constant drip, drip, drip of information that comes out about the documents. and it's surprising, to some extent, because i spent two years talking to almost all of joe biden's inner circle. usually they're much more adept at handling these crises. i can tell you this is the most batened down, disciplined leak-proof white house in years. we say anything could be contradicted later. we can't get ahead of the process, but they really need to raise their game here, i think, because this really goes to the heart of joe biden's greatest asset, arguably, which is trust. i mean, maybe not for a 30% to 40% of the american people, but for democrats and independents. that's really at stake here. bob bauer is a fascinating choice to do this. he's a very bright guy.

i've interviewed him for the book. he tells some great stories in it about the transition. and i think that bauer is a very smart lawyer and very cautious. he's not going to want the white house to get out there and talk a lot about what's going on. and as you noted, he's married to one of joe biden's most influential political advisers, anita dunn. so, you really have to wonder what it's like around that dinner table. if i know bob bauer, he may not even be talking to her about this. >> it's a very tight-knit group around the president. and has been for years. >> yeah. >> how did something like this happen? >> well, you know, look, everybody's baffled by it. and you have to wonder if you were to search some of the other presidential properties of other presidents whether we'd be finding the same thing. i think mike morell is right, there has to be a much better

process. it's just a sloppy process, i think. again, substantively, i think this is really serious in one way because i itcomes difficult impossible, to bring charges on the mar-a-lago documents case. and the reason i say that is because no matter what anybody says about this only being about the facts and the laws, it is inarguably a political decision with enormous political ramifications. jack smith and merrick garland have to be thinking about a jury, choosing a jury, and whether that jury is going to think that what trump did is all that egregious if documents keep popping up every other day in joe biden's residences. >> at this point in a presidency, you often see officials rotate out. i know you spoke to chief of staff ron klein extensively. is he staying on? should we expect other changes? > that's a really big question for joe biden.

look, he's had a very successful two-year presidency, particularly -- the second year has been one of the most consequential years for any president in modern history. the first year was tougher. we can talk about that. but i think -- >> i assume you're talking about afghanistan. >> afghanistan in particular. but i think joe biden will have a very tough decision to make if ron klain decides to move on any time soon because those are very large shoes to fill. ron klain is arguably belongs in elite company, james baker, leon panetta, some of the best chiefs of staff around. so i think it's going to be a really, really important decision. >> they didn't tweet like he does. he's very active on twitter. let's go to something serious here, afghanistan. that was a huge black mark on the biden administration. >> it was. >> to really have such a chaotic

withdrawal on something they really didn't expect to go sideways the way it did. >> i think this is a tale of two presidencies, the first year and the second year. the first year overshadowed by afghanistan, even though he had a lot of accomplishments that first year. it was chaotic, god knows, watching it on television, but what i discovered and reporta. yes. >> and tony blinken, the secretary of state told me in no uncertain terms that everything we did was based on a fatally flawed intelligence assessment that the afghan government would last for 18 months. this was news to cia director bill burns when i sat down with him and talked to him at length about it. he said, look, if you pulled out two legs of the stool, as he put it, american forces and contractors, we predicted that that could collapse very quickly. so, afghanistan, and i also have this wonderful story that, i

mean, joe biden shared with me what it was like on the worst day of his presidency, what he called the hardest of the hard days when 13 service members were killed by the suicide bombing in kabul. afterwards, biden had to confront -- had to try to console the families of those fallen soldiers. some of them blamed him. some of them were upset because he invoked his son beau. this was personally really wrenching for joe biden. and it's, i think, a great insight into him. >> it's a compelling -- it's a compelling book. thank you very much. >> thanks so much, margaret. >> we'll be back in a moment.

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russia launched another wave of missile attacks on ukraine on saturday. explosions were heard in kyiv this weekend as missiles rained down nearby, killing about two dozen people in npro. kyiv is calling on the west to provide them with advanced air defense sysms. d debora patta has the test

>> repr: a reminder russian style, this is a war declared largely on civilians. rescue workers paused to listen for survivors in the dark. is someone alive, they shout in unison? among the dead, children. among the living, this woman, 23-year-old, who survived by hiding in the bathroom of what was once her seventh floor apartment. the strikes come after intense combat in the east where ukraine is fighting to hold onto soledar. russia claims the town is under its control. ukraine disputes this, saying moscow is trying to grind down its forces using mercenaries from the russian paramilitary group vagna. they've had a lot of losses, this ukrainian soldier said. they are attackingnaves and walking over the dead bodies.

wagner insists its fighters, not the regular russian army, seized soledar, a claim that's led to an internal turf war in russia over who should get credit for a victory here. but vladimir putin desperately needs a win. he's failed to take a single town since july. wagner's leader yevgeny made a triumphant visit to soledar yesterday to hand out medals to his men. they captured it in two weeks, he bragged. they're probably the most experienced army in the world. the truth is they are convicts, recruited from prisons across russia, pardoned in exchange for fighting on the front line. fueling fears that arming hardened criminals could lead to more battlefield atrocities, says ukrainian military expert. convicts have no moral line to cross, he told us, since they arrived on the battlefield, war crimes have increased.

allied support remains strong with the uk. to nownder pressure to follow suit. aret? litt b of a bright spot in our economy, as this december's consumer price for the sixth straight month, thanks in most part to falling energy prices. now, the fed is expected to continue to raise interest rates, but given the new data, the size and pace of those increases remains an open question. we'll be right back. ome to amer. i'm sam morrison. my brother max recommended you. so my best friend sophie says you've been a huge help. at ameriprise financial, more than 9 out of 10 of our clients are likely to recommend us. our neighbors, the garcias, love working with you. because the advice we give is personalized, hey, john reese, jr. how's your father doing? to help reach your goals with confidence. my sister has told me so much about you. that's why it's more than advice worth listening to.

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>> announcer: this is the "cbs overnight news." good evening and thanks for joining us. today president biden became the first sitting president to speak during a sunday service at atlanta's historic ebenezer baptist church, where dr. martin luther king j pastor. speaking to parishioners, the president reiterated a theme he's called on before, redeeming the soul of america. >> a dream in which we all deserve liberty and justice and it's still theas