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The headline is delicious: Vice President Biden left the White House taking classified documents with him. However, what’s really lovely is the problem this creates for Obama: After all, he’s the only one who can rescue Biden but, by doing so, he will completely exonerate Trump of the charges that the latter violated national security laws by taking documents with him when he left the White House.
Both Rajan Laad and Howard J. Warner have ably covered the factual issues surrounding the news that Biden took classified documents with him when he left the Vice President’s office. They addressed how the Washington establishment had the story before the midterms but covered it up; how that same establishment (including the media) that castigated Trump as a traitor and arch-criminal for allegedly having classified material in his possession is now racing to make excuses for Biden; and how it’s possible that China had access to the materials because it has access to the University of Pennsylvania Biden “think tank” in which the documents resided for so many years.
What I find so delectable is that Biden has only one defense to the charge that he stole classified documents from the White House, which is a felony (as Democrats never failed to remind us when the FBI raided Mar-a-Lago). That defense is that Obama, who was president when Biden took the documents, gave him permission to take them, effectively declassifying them.
This defense works because the President of the United States is the ultimate authority about whether to declassify documents. Moreover, as I never tire of saying, the president doesn’t need to go through any rubberstamp process, nor does he need to consult with the bureaucrats who work for him. Basically, he has the power, whether through words (“Here, Joe, take these classified documents with you when you leave the White House”) or actions (stuffing the documents in his own briefcase), to declassify them instantly, with nothing more required.
This is because the president—and only the president—has what’s called “plenary” power over national security matters, including document classification and de-classification. The Supreme Court articulated what’s currently the last and best word on the subject in Navy v. Egan, 484 U.S. 518 (1988), a case examining whether a civil service board could review someone’s being denied a national security clearance, a power it came to via a congressional act.
The Supreme Court gave an unequivocal “no,” based in part on the fact that the executive office is the final word on classification:
The President, after all, is the “Commander in Chief of the Army and Navy of the United States.” U.S.Const., Art. II, § 2. His authority to classify and control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position in the Executive Branch that will give that person access to such information flows primarily from this constitutional investment of power in the President, and exists quite apart from any explicit congressional grant. See Cafeteria Workers v. McElroy, 367 U. S. 886, 367 U. S. 890 (1961).
Now you can see the Hobson’s choice Obama is being forced to make. As I noted, the uncontested facts show that Joe Biden violated national security laws and, worse, put those same documents in an unsecured environment to which the Chinese had access. When they learned that Trump had documents in the Secret Service-secured environment of Mar-a-Lago, Dems thought execution was too good for him. I guess that’s the appropriate punishment for Biden, too, given that he committed the crime years before he gained the White House.
There is only one way to say that Biden is innocent, and that is for Obama to announce, “I told Joe he could take the documents.” However, if Obama makes that announcement, he has conceded, and all the Dems will be forced to concede, that a president can declassify documents simply by walking them out of the White House or authorizing someone else to do so.
In other words, to exonerate Biden, Obama must also exonerate Trump from the disgraceful, deeply (criminally?) dishonest charge leveled against Trump. I get a real kick imagining Obama sitting in the lavishly decorated office of one of his three luxury homes, cursing to himself that you can always trust Joe Biden to “F” things up.
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