Federal law doesn’t give U.S. vice presidents authority to declassify government documents.
Under an Obama-era executive order that retained a Bush-era order, vice presidents have the authority to categorise and declassify documents — identical to presidents. There may be some ambiguity about whether or not they have the ability to order departments and agencies to declassify material deemed secret by those agencies, however the scope of this power has never been tested. In January 2023, after news broke that federal documents pertaining to U.S. President Joe Biden’s tenure as vp were uncovered at his former office and Delaware home, critics pushed the erroneous notion that he did not have the authority, while serving under Obama, to declassify those files. Nonetheless, the matter was irrelevant to the U.S. Department of Justice’s review of Biden’s handling of such files.
In January 2023, U.S. President Joe Biden faced scrutiny after news emerged that government classified files were present in a non-public office he used after serving as vp in Barack Obama’s administration, in addition to in a storage container at his Delaware home. The reports got here just months after the FBI raid of former President Donald Trump’s Mar-a-Lago property to acquire a whole bunch of classified documents there.
Comparisons between the 2 cases ran rampant. Among the many alleged differences, in line with some social media users, was that Biden, in his position as vp, didn’t have the authority to declassify government documents, while Trump, as president, did.
“[Trump] as President had the unlimited power to declassify whereas VP Biden didn’t,” journalist Glenn Greenwald tweeted, for instance.
Nonetheless, the claim that federal law doesn’t give vice presidents the ability to declassify government documents, and reserves that authority for presidents, is fake.Â
Under a 2009 Obama-era executive order titled “Classified National Security Information” the vp does have the ability to declassify documents while they’re in office. The order states: “The authority to categorise information originally could also be exercised only by: (1) the President and the Vice President […],” in addition to “agency heads and officials designated by the President.”Â
It further elaborates on who has the authority to declassify:
(b) Â Information shall be declassified or downgraded by:
(1) Â the official who authorized the unique classification, if that official remains to be serving in the identical position and has original classification authority;
(2) Â the originator’s current successor in function, if that individual has original classification authority;
(3) Â a supervisory official of either the originator or his or her successor in function, if the supervisory official has original classification authority; or
(4) Â officials delegated declassification authority in writing by the agency head or the senior agency official of the originating agency.
The “original classification authority” is defined within the order as “a person authorized in writing, either by the President, the Vice President, or by agency heads or other officials designated by the President, to categorise information in the primary instance.” They may also determine when a document might be declassified: “On the time of original classification, the unique classification authority shall establish a selected date or event for declassification based on the duration of the national security sensitivity of the knowledge.”Â
Before the 2009 executive order, vice presidents could only classify and declassify documents under certain conditions. In 2003, former President George W. Bush issued an order during which “the authority to categorise information originally could also be exercised only by: (1) the President and, within the performance of executive duties, the Vice President.” Prior to that, the vp only had classification authority “comparable to that of an agency head, having been delegated such authority in a 1995 presidential order,” as explained by Steven Aftergood of the Federation of American Scientists.
As of January 2023, Tom Blanton, director of the independent nongovernmental organization the National Security Archive, confirmed with Snopes that the 2009 executive order was still in effect, and that the vp was an “original classification authority” within the sense that the elected official could, while still in office, declassify any federal document, including ones that other people have designated classified.
Kel McClanahan, executive director of National Security Counselors, a public-interest law firm told us that “The vp can resolve to categorise a CIA, NSA, or USDA document on the spot in the identical way that another [original classification authority] can.” And all original classification authorities have “inherent declassification authority.”
He added: “[…] the president has the ability to declassify anything he wants, period, and as a matter of practice within the intelligence community, everyone treats the [vice president] as having the identical power derived from the presidential authority unless the president specifically says “no the [vice president] doesn’t have declassification authority outside of knowledge he created,” which has never happened.”Â
He added that such a practice “has never been challenged to my knowledge.”Â
“Most [original classification authorities (OCAs)] don’t generally exercise that declassification authority, but that is an easy matter of practice,” he said. “Most OCAs prefer to let the declassification specialists (e.g. the FOIA office, the lawyers, etc.) handle declassification matters, however the authority remains to be there.”
We should always note that there may be some ambiguity in the manager orders. Based on the Recent York Times, presidents are the very best level official with classifying authority but they “often direct subordinates overseeing the agency with primary responsibility for that information to review the matter.” On rare occasions do presidents declassify things directly.
Aftergood noted to the Recent York Times that the 2003 Bush-era order doesn’t explicitly say whether vice presidents have supervisory authority over departments and agencies for the aim of declassifying information that they’d deemed secret. Bush was seen as deputizing Cheney to exercise the identical powers as he had, though vice presidents weren’t normally a part of the chain of command. But in line with Aftergood, the scope of a vp’s declassification power has never been definitively tested.Â
While it’s true in Biden’s case — that’s, on condition that documents uncovered at his private office and Delaware home pertain to work during his vice presidency, he could have, while serving under Obama, declassified those files — that fact is irrelevant when it comes to the U.S. Justice Department’s review of the files and the circumstances under which they were kept. Moderately, at the middle of that effort, in addition to the department’s probe into documents uncovered at Trump’s property, is the indisputable fact that such government files, classified or declassified, mustn’t have been at their private properties in the primary place. They should have been handed over to the National Archives as an alternative, per federal law.
The Recent York Times stated, “While the [2009] executive order governing the classified information system gives vice presidents the identical power to declassify secrets as presidents wield, Mr. Biden has not claimed he declassified the materials present in the Penn Biden Center closet,” the placement of the primary batch of documents found. After the news broke concerning the first batch of discovered documents, Biden said he didn’t know what information the documents contained.
Blanton, of the National Security Archive, concurred: “I do know of no suggestion that Biden had declassified any of what has been found.”
Trump, nonetheless, has made the law governing who can classify, and declassify, documents a part of his case. While defending himself for holding documents at Mar-a-Lago after his presidency, he said that, as president, he had the ability to declassify every little thing that turned up within the FBI search. Moreover, he claimed that he could declassify documents simply at will.
Trump was correct that presidents have the ability to declassify documents. But experts identified to Politifact in 2022 that merely declaring a document declassified, or pondering that it’s, doesn’t make it so; federal law governing government documents requires presidents to follow certain steps to officially turn a classified file right into a declassified one, which include physically modifying its markings.Â
Commenting on the documents uncovered at Trump’s Mar-a-Lago property, a three-judge appellate panel of the Court of Appeals for the eleventh Circuit noted in 2022 there was “no evidence that any of those records were declassified.” And even when Trump had declassified the documents using the federally-mandated steps to accomplish that, he was still certain by federal law that requires presidents to return all government documents — classified or unclassified — to the National Archives and Records Administration (NARA) once they leave office. Declassifying a document wouldn’t “render it personal,” the court stated.Â
In sum, under an Obama-era executive order, vice presidents have the authority to categorise and declassify documents — identical to presidents. Nonetheless, that fact was irrelevant to the DOJ’s 2023 investigation into documents discovered at a former office and residential of Biden.
[Related:Â Comparing Biden’s and Trump’s Improper Storage of Classified Materials]
Sources:
Aftergood, Steven. “The Vice President’s Declassification Authority.” Federation Of American Scientists, 16 Feb. 2006. https://fas.org/blogs/secrecy/2006/02/the_vice_presidents_declassifi/. Accessed 13 Jan. 2023.
“Evaluation | Biden, Trump and Classified Documents: An Explainer.” Washington Post, 11 Jan. 2023. https://www.washingtonpost.com/politics/2023/01/11/biden-trump-classified-documents-an-explainer/. Accessed 13 Jan. 2023.
Collinson, Stephen. “Biden’s Documents Drama Gives Republicans a Fresh Narrative to Use against Him.” CNN, 11 Jan. 2023, https://www.cnn.com/2023/01/11/politics/biden-documents-republicans/index.html. Accessed 13 Jan. 2023.
“Could Donald Trump Declassify Documents with Only a Thought? Three Legal Precedents Say No.” Politifact, 23 Sept. 2022. https://www.politifact.com/article/2022/sep/23/could-donald-trump-declassify-documents-with/. Accessed 13 Jan. 2023.
“Executive Order 13526- Classified National Security Information.” Whitehouse.Gov, 29 Dec. 2009, https://obamawhitehouse.archives.gov/the-press-office/executive-order-classified-national-security-information. Accessed 13 Jan. 2023.
“Garland Appoints Special Counsel to Investigate Biden Docs.” AP NEWS, 12 Jan. 2023, https://apnews.com/article/classified-documents-biden-home-wilmington-33479d12c7cf0a822adb2f44c32b88fd. Accessed 13 Jan. 2023.
Goitein, Elizabeth. “Government Classification and the Mar-a-Lago Documents.” Brennan Center for Justice, 6 Oct. 2022. https://www.brennancenter.org/our-work/research-reports/government-classification-and-mar-lago-documents. Accessed 13 Jan. 2023.
Ibrahim, Nur. “Email interview with Tom Blanton.” 12 Jan. 2023.
Ibrahim, Nur. “Email interview with Kel McClanahan.” 13 Jan. 2023.Â
Kasprak, Alex. “Comparing Biden’s and Trump’s Improper Storage of Classified Materials.” Snopes, 12 Jan. 2023, https://www.snopes.com/news/2023/01/12/biden-trump-classified-material/. Accessed 13 Jan. 2023.
Savage, Charlie. “How Biden’s Discovery of Classified Files Compares With the Trump Case.” The Recent York Times, 11 Jan. 2023. NYTimes.com, https://www.nytimes.com/2023/01/10/us/politics/trump-biden-classified-documents.html. Accessed 13 Jan. 2023.
Savage, Charlie. “How Classified Information Is Handled.” The Recent York Times, 13 Jan. 2023. NYTimes.com, https://www.nytimes.com/2023/01/13/us/politics/how-classified-information-is-handled.html. Accessed 16 Jan. 2023.Â
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