The Brian Mudd Show

The Brian Mudd Show

There are two sides to stories and one side to facts. That's Brian's mantra and what drives him to get beyond the headlines.Full Bio


Q&A – Is it Possible for the Vice President to Declassify Documents?

Q&A of the Day – Is it Possible for the Vice President to Declassify Documents? 

Each day I feature a listener question sent by one of these methods.   


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Today’s Entry: Brian, lol Whoopi said Biden probably declassified all of the docs. Is it even possible for a VP to declassify?  

Bottom Line: Well, I think it’s safe to say that The View is the unofficial home of “the Nasty woman” - though I don’t know if Ashley Judd is a viewer. However, it is number 1 in its timeslot averaging over 2 million viewers making it and Whoopi specifically still somewhat sadly relevant. Now, specifically what Whoopi said pertaining to Biden’s docs scandal is this: I wish they would say all that while they’re explaining what’s going on, because if you say, you know, a classified document, everybody goes, Oh my God, How dare he keep that? And if these guys can declassify-presidents and vice presidents can declassify, are we chasing our tail with some of this? Now, the first and obvious observation pertaining to Whoopi Goldberg is the hilarity in her hypocrisy. She of the “I’m thinking Donald Trump into jail” comment after he claimed he declassified his docs. In her world, the President of the United States, who retains absolute authority to declassify, couldn’t plausibly have declassified documents (whether he did or not) but the Vice President who doesn’t could have. But look, it’s Whoopi, what else would you expect. But about the question raised here. Can a Vice President declassify documents?  

The answer is yes, a Vice President can declassify documents but with a big ‘ole but attached to it. Prior to 1995 only the President of the United States could declassify any documents. However, in 1995, President Bill Clinton issued an executive order delegating some classification authority to a host of cabinet officials based on the classification level of the material. Specifically, under the order, numerous cabinet officials had the authority to classify documents as they deemed necessary. That included six cabinet officials granted full authority to issue Top Secret classifications – one of which was the Vice President. That practice has continued with each successive president issuing their own executive order identifying the extent to which they want to delegate classification authority. President Bush, for example, made wholesale changes to the original Clinton directive making the delegation far more restrictive. Given that this question centers around the classification authority of Joe Biden as Vice President, it’s President Obama’s order which provides the legal context of this question. 

Under Section 1.3 it states: The authority to classify information originally may be exercised only by:(1) the President and the Vice President;(2) agency heads and officials designated by the President; and(3) United States Government officials delegated this authority pursuant to paragraph (c) of this section. 

Ok, so clearly Joe Biden would have retained authority to classify documents while Vice President. But the question is about whether he could declassify material. So, about that... Declassifying was covered under Section 3.1. Where it states: Information shall be declassified or downgraded by:(1) the official who authorized the original classification, if that official is still serving in the same position and has original classification authority. So, this is the huge, huge, gigantic point within this entire conversation. Could Joe Biden have declassified material while Vice President? Yes, however he could have only declassified material that he himself originally classified. He did not, nor does the Vice President currently, retain the authority to declassify documents which were classified by other officials. So, context is clearly key here.  

It’s at this point that the crux of President Biden’s classified documents scandal comes into focus. What are the documents he possessed? Were any he’d taken to his house or to the Penn Biden Center classified by another official? Secondarily, if any documents he possessed were classified originally by him, had he taken appropriate action to declassify them? This is a sentinel point within this conversation as it pertains to former President Trump. There’s no question as to if he could have declassified all of the documents at Mar-a-Lago, he retained absolute authority to do so. The question is exclusively whether he actually took official action to do so. To this end, since the public will never be aware of anything associated with the specifics of these documents, we’re left in a position to have to trust the integrity of the investigation. That is with a now especially notably exclusion.  

The most recent batch of classified documents discovered over the weekend at President Biden’s home were from his time as a Senator from Delaware. There is no scenario under any administration in American history in which a United States Senator could lawfully remove classified material from official locations. Secondarily, even if the material were taken during his time as Vice President, he still couldn’t have legally extracted it, given that the Vice President only retains the authority to declassify what they originally classified. Based on the DOJ’s public acknowledgment of those findings, there’s evident criminal conduct associated with the possession of those documents. As always there are two sides to stories and one side to facts. These are the facts. 

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