Trump is wrong; Biden did have the right to declassify records as VP

After news broke that classified documents were found in President Joe Biden’s former office in a Washington, D.C., think tank and his Delaware home, people were quick to draw comparisons between him and former President Donald Trump.

Biden and Trump are being separately investigated for possible mishandling of classified documents. Attorney General Merrick Garland has assigned special counsels to both cases. But in an interview with conservative journalist John Solomon, Trump said his own situation is different from Biden’s in at least one key way.

Trump, who is running for president again, has periodically claimed that he declassified the documents he possessed. Biden, he said, could not offer the same defense: 

"Well, you know, as vice president, (Biden) doesn’t have the right to declassify," Trump said in a Jan. 10 phone interview for "No Noise," a video show Solomon co-hosts on the right-wing website Just the News. "They shouldn’t have been there. And for that long, I guess it was seven years, or nine years now, I’m hearing. Very extended periods of time." 

Video of Trump’s interview was shared on Facebook. It was flagged as part of Facebook’s efforts to combat false news and misinformation on its News Feed. (Read more about our partnership with Meta, which owns Facebook and Instagram.)

We saw similar statements being shared elsewhere on social media. It was also amplified on Twitter by conservative lawmakers, including Reps. Marjorie Taylor Greene, R-Ga., Ronny Jackson, R-Texas, and Andrew Clyde, R-Ga., and during a CNN interview by Rep. James Comer, R-Ky.

Spokespersons for Trump and Biden did not respond to our requests for comment.

A look at the law shows Trump is wrong; Biden had the right to declassify documents while he was vice president. Here’s what we know. 

On Jan. 9, CBS News broke the story that Biden’s lawyers in November had discovered documents, some with classification markings, at the Penn Biden Center for Diplomacy and Global Engagement in Washington, D.C.

In a statement, Biden lawyer Richard Sauber said the documents discovered "appear to be Obama-Biden Administration records, including a small number of documents with classified markings." Biden served as vice president from Jan. 20, 2009, to Jan. 20, 2017.

The White House later said six additional pages with classification markings were found in Biden’s Wilmington, Delaware, residence. The content of the documents is not publicly known. 

This story is still developing, but early reporting showed that the discovery of classified documents at Biden’s office and residence differs from the seizure of documents at Trump’s Mar-a-Lago resort in Florida in several ways. The Biden team said it notified the National Archives and ceded the documents immediately upon discovery, while the Trump team for months blocked efforts to recover the records at Mar-a-Lago, prompting the FBI to conduct its August search.

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. 

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.

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Since 1940, most presidents have issued executive orders setting rules on classification and declassification powers, according to a 2010 Congressional Research Service report. Trump never issued his own and so far, Biden hasn’t either. So, Obama’s directive remains in effect.

Others with declassification authority include whoever succeeds or supervises the person who originated the information, and officials who have been given declassification authority in writing by agency heads or senior agency officials. 

Experts are divided on whether the vice president is considered a supervisory official over other agencies, and has declassification authority over their classified information. 

Steven Aftergood, former director of the Federation of American Scientists Project on Government Secrecy, told PolitiFact that he thinks the Obama order did not resolve this issue. However, he said the matter almost never comes up. "As a rule, vice presidents don't normally initiate their own declassification efforts independent of the White House or the executive branch agencies," he said.

Meanwhile, Tom Blanton, director of the National Security Archive, told Snopes that as an "original classification authority," the vice president could declassify any federal document while still in office, including those that other people designated classified.

Bradley Moss, a lawyer who works on national security cases, told PolitiFact, "By the strict terms of (the executive order’s) language, the incumbent president could only declassify information that he/she originated or that was originated by his/her successor. Presidents rarely, if ever, are the originators of classified information, and the same goes for vice presidents."

"There is no real case precedent of which I am aware in which any of this was ever addressed, nor is it clear how it would be," Moss added.

PolitiFact reached out to Information Security Oversight Office Director Mark Bradley for an authoritative stance, since he implements Executive Order 13526. Bradley’s staff said he had no comment. 

Trump said that as vice president, Biden did not have the right to declassify documents.

The applicable executive order on such matters is one Obama signed, which gives the vice president the authority to classify and declassify documents.

There is some ambiguity about the effect of the order on the vice president’s ability to declassify documents that were initially classified by other agencies, but experts are divided about this unknown and note that it has never been tested. It's also unclear how any of this might apply to the documents in Biden's case.

The broad nature of Trump’s statement is disproven by the order. We rate Trump’s claim False.