Another batch of classified documents were reported yesterday as the reckless handling of these materials by then Vice President Joe Biden continues. The Mockingbird Media is already running interference and trying to distance Joe Biden from comparisons drawn to the FBI raid of Donald Trump’s home at Mar-a-Lago last August.
Earlier today, AG Merrick Garland assigned a special counsel to investigate Biden’s handling of the classified documents. This means we will have two special counsels investigating the two likely front running candidates for President from each major party in 2024. Both investigations will focus around similar subjects of the investigations: handling of classified documents. However, only one of the two men had the authority at the time to declassify documents.
NBC News has published an article that cites a quote from Washington D.C. attorney Bradley Moss where he states:
“Nothing I have seen has changed my mind yet that Biden and his team, for now at least, are not at risk of criminal exposure. Nor do I have any reason to believe this changes the calculus on an indictment of Trump. That said, this sloppiness by Biden’s staff angers me.”
The above statement was made after the second batch of documents were found, but more importantly, before it was disclosed that they were in Biden’s garage next to his Corvette, in a home that his son, Hunter Biden, has listed as his residence on his Delaware drivers license. Hunter Biden is notorious for a rough history with drug addiction and sexual deviances. It is unknown if he had access to the garage where these documents were stored. The documents are alleged to include classified information regarding, of all places, Ukraine.
As Joe Biden stated during his “60 Minutes” interview in September: “How that could possibly happen. How…anyone could be that irresponsible. And I thought, ‘What data was in there that may compromise sources and methods?’ By that I mean, names of people who helped… And it just totally irresponsible.”
Aside from storing the documents in a garage, whether locked or not, there is one other contrasting point that needs to be understood about these two unique circumstances regarding Biden and Trump: only one was President and had the authority to declassify documents during the times they were retained.
The same attorney quoted in the NBC article above, Bradley Moss, was also cited in a Politifact article in August 2022 where he said:
“Merely proclaiming a document or group of documents declassified and doing nothing more would not suffice,”
Follow-through is required.
“He had to identify the specific documents he was declassifying, he needed to memorialize the order in writing for bureaucratic and historical purposes, and he needed to have staff physically modify the classification markings on the documents themselves,” Moss said. “Until that was done, the documents, per the security classification procedures, still have to be handled, transmitted and stored as if they were classified.”
“We’re in uncharted territory on the issue of criminally prosecuting a former president over mishandling classified documents,” Moss said. “There is no legal precedent to look to for guidance. It raises all sorts of constitutional implications and it is anyone’s guess how it would play out.”
When I reached out to Mr. Moss for comment, he responded:
As I have stated in countless articles and interviews since August, the courts during the Trump years concluded that to deem information or documentation as declassified even the President still had to comply with the declassification procedures set forth in the Executive Order and the relevant security classification guides [applicable] to each set of documents.
I further inquired what procedures specifically he was referring to in the Executive Order (presumably E.O. 13526) to which he responded:
There were several FOIA cases in the Trump years (some have my name as listed counsel) on them that addressed the idea of presidential statements serving as sufficient to declassify documents. Each time, when pressed by the courts, DOJ backed off and stated that the presidential statements were not self-executing. Three of those cases (one of which was mine) were specifically cited in the PolitiFact article you originally referenced – PolitiFact | Could Donald Trump declassify documents with just a thought? Three legal precedents say no
The Politifact article cites two experts that contradict each other, one of them being Mr. Moss. The other is Steven Aftergood, the director of the Federation of American Scientists Project on Government Secrecy. In 2017, he told Politifact:
The president is not “obliged to follow any procedures other than those that he himself has prescribed,” Aftergood said. “And he can change those.”
Furthermore, President Obama’s Executive Order 13526, which “prescribes a uniform system for classifying, safeguarding, and declassifying national security information”, dictates the procedure used for subordinates and department heads, among others, for declassifying documents. However, missing from the executive order is the process that must be followed for the President.
While the Politifact article cites court decisions that a press release and a tweet are insufficient to declassify documents, the Dept. of Navy v. Egan seems to give the President plenary authority separate from “congressional grant”:
“The president, after all, is the ‘Commander in Chief of the Army and Navy of the United States’” according to Article II of the Constitution, the court’s majority wrote. “His authority to classify and control access to information bearing on national security … flows primarily from this constitutional investment of power in the president, and exists quite apart from any explicit congressional grant.”
Kash Patel, a constitutional attorney, former Deputy Assistant to the President, and former Chief of Staff to Acting Secretary of Defense Christopher Miller among other roles, seems to disagree with Mr. Moss’s assessment that there is an outlined procedure that must be followed:
Mr. Patel states that:
“The President of the United States is and always has been the ultimate unilateral classification authority to classify and declassify. If he says something is declassified, that’s it. It’s declassified. He issued a strong statement in October of 2020 declassifying all Russiagate and all Hillary Clinton documents…”
Clearly, there is conflicting opinions as to what implies “procedure” that the President must follow to declassify documents, if any. I have not been able to get a direct reference to a specific section of any order that would explicitly outline said procedure.
As Mr. Moss has noted, it would require one to identify the specific documents he was declassifying,…memorialize the order in writing for bureaucratic and historical purposes, and he needed to have staff physically modify the classification markings on the documents themselves.
It is worth nothing that on January 19, 2021, President Trump did in fact issue an official memorandum in which he stated:
At my request, on December 30, 2020, the Department of Justice provided the White House with a binder of materials related to the Federal Bureau of Investigation’s Crossfire Hurricane investigation. Portions of the documents in the binder have remained classified and have not been released to the Congress or the public. I requested the documents so that a declassification review could be performed and so I could determine to what extent materials in the binder should be released in unclassified form.
I determined that the materials in that binder should be declassified to the maximum extent possible. In response, and as part of the iterative process of the declassification review, under a cover letter dated January 17, 2021, the Federal Bureau of Investigation noted its continuing objection to any further declassification of the materials in the binder and also, on the basis of a review that included Intelligence Community equities, identified the passages that it believed it was most crucial to keep from public disclosure. I have determined to accept the redactions proposed for continued classification by the FBI in that January 17 submission.
I hereby declassify the remaining materials in the binder. This is my final determination under the declassification review and I have directed the Attorney General to implement the redactions proposed in the FBI’s January 17 submission and return to the White House an appropriately redacted copy.