Obama, Declassification and Sen. Biden

One nice thing about being President

Joe Biden

is that sometimes media outlets will make arguments on your behalf that you are not even willing to attempt on your own. Witness journalists responding to the news of government secrets casually strewn around Biden property. Some have been suggesting that Mr. Biden received significant authority over classified documents while serving as vice president during the Obama administration. There are many reasons why Mr. Biden doesn’t seem to find this argument as compelling as his friends in the media do. Now the latest discoveries at his Delaware home seem to confirm that the argument is irrelevant. They also suggest a much greater legal danger for the president.

The discovery of classified records from Mr. Biden’s time in the Senate means he cannot claim the protection of an Obama order, the Presidential Records Act or any other type of executive privilege.

One can understand why media folk did not want to concede the possibility that

Donald Trump

might have a greater claim to the documents at Mar-a-Lago than Joe Biden does to the documents found in his private office, home, garage… By the way, has anyone looked under the seats on the Amtrak Northeast Regional?

Last week this column noted:

It makes sense that Mr. Biden and his lawyers are not trying to claim that as a former vice president he enjoyed some authority to keep such documents. It is the president, not the vice president, who holds all of the constitutional authority as commander in chief and therefore authority over the classification system for national security secrets. Presumably if either President

Barack Obama

or President Donald Trump had ordered the documents to be stored in various Biden locales, this fact would have come to light by now.

Moreover, the vice president is explicitly excepted from the section of the Presidential Records Act entitled “constitutionally based privilege against disclosure.” Former presidents are thus empowered to contest the determinations of the National Archives in a way that former vice presidents are not.

In short, Mr. Biden has no argument to make and he’s not making one. Rather he is claiming to have been left completely in the dark about how classified documents from secure government facilities ended up in his office, his home and his garage.

Since then PolitiFact has joined in the chorus touting Mr. Biden’s vice presidential privileges:

Did Biden have the power to declassify documents while he was vice president?

The short answer: yes.

The official documents that govern classification and declassification are from presidential executive orders. In 2009, President Barack Obama issued Executive Order 13526, titled “Classified National Security Information.”

Section 1.3 of that order gives the president and the vice president original classification authority, which means authority to initiate classifying information.

Readers are bound to stumble on that last sentence for a few reasons. The president already held robust constitutional authority and did not need to issue an order authorizing himself to exercise power over the classification system. The passage also may seem to suggest that the vice president was given the same authority as the president, but of course the United States government has a unitary executive, not a binary one. And reading the Obama executive order one finds that Mr. Biden was given the same authority over classified documents as various other senior government officials, not some special Obama-bequeathed superpower.

PolitiFact continues its story of the Obama executive order:

Section 3.1 says information shall be declassified or downgraded by, among others, “the official who authorized the original classification, if that official is still serving in the same position and has original classification authority.”

This means that because Biden had original classification authority as vice president, he also had authority to declassify information that he had classified in the first place. We don’t know who initiated the classifications on the documents found in Biden’s home and office.

But we do know that vice presidents are usually consumers, not producers, of classified reports and therefore it’s highly unlikely that he had the authority to declassify all the material found in his various private spaces. If the documents contain information on military capabilities or methods and sources of intelligence, does anyone think that Mr. Biden was in the field collecting and then classifying such secrets?

Moreover, if he actually did have the authority to declassify all these documents and he followed the declassification process dictated by the Obama rules, there would be nothing to investigate.

Speaking of that 2009 executive order, it seems that just like Joe Biden,

Mike Pence

also doesn’t seem to think he was imbued with vice presidential superpowers by Barack Obama.

This brings us to the latest Biden revelation. The Journal’s Andrew Restuccia reports that Mr. Biden’s personal lawyer Bob Bauer “announced that a Justice Department search of the president’s home in Wilmington, Del., prompted authorities to take possession of six additional items with classified markings.” Mr. Restuccia adds:

While the initial classified documents appeared to be from Mr. Biden’s time as vice president, Mr. Bauer said on Saturday that the latest items collected by federal agents included items from Mr. Biden’s tenure in the Senate.

Whatever presidential authorities exist and may or may not extend to vice presidents, they surely do not protect Mr. Biden’s actions during his career as a senator. “He’s completely naked,” says Journal contributor David Rivkin.

True believers in the magical power of an Obama executive order will not be able to make a case that Sen. Biden had the authority to take classified information home from work.

For those arguing that former presidents and even vice presidents often end up with classified documents as they pack up an administration, are they also prepared to excuse the actions of members of Congress? Perhaps it’s time to clarify who exactly is expected to follow the law and protect America’s secrets.


James Freeman is the co-author of “The Cost: Trump, China and American Revival.”


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(Lisa Rossi helps compile Best of the Web. Thanks to Steve Boldish and Mark Zoeller.)


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