Fact Check

Do Vice Presidents Not Have Authority To Declassify Documents?

The question surfaced after news broke that two batches of classified documents were found at President Joe Biden's Delaware home and former office.

Published Jan. 13, 2023

Updated Jan. 19, 2023
 (Daniel Schwen/Wikimedia Commons)
Image courtesy of Daniel Schwen/Wikimedia Commons
Claim:
Federal law does not give U.S. vice presidents authority to declassify government documents.
Context

Under an Obama-era executive order that retained a Bush-era order, vice presidents have the authority to classify and declassify documents — just like presidents. There is some ambiguity about whether they have the power to order departments and agencies to declassify material deemed secret by those agencies, but the scope of this power has never been tested. One expert informed us that Vice Presidents rarely practice this authority. In January 2023, after news broke that federal documents pertaining to U.S. President Joe Biden's tenure as vice president were uncovered at his former office and Delaware home, critics pushed the erroneous notion that he didn't 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 found in a private office he used after serving as vice president in Barack Obama's administration, as well as in a storage container at his Delaware home. The reports came just months after the FBI raid of former President Donald Trump's Mar-a-Lago property to obtain hundreds of classified documents there.

Comparisons between the two cases ran rampant. Among the alleged differences, according to some social media users, was that Biden, in his position as vice president, did not 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 example.

However, the claim that federal law does not give vice presidents the power to declassify government documents, and reserves that authority for presidents, is false. 

Under a 2009 Obama-era executive order titled "Classified National Security Information" the vice president does have the power to declassify documents while they're in office. The order states: "The authority to classify information originally may be exercised only by: (1) the President and the Vice President [...]," as well as "agency heads and officials designated by the President." 

It further elaborates on who has the authority to declassify:

(b)  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;

(2)  the originator's current successor in function, if that individual has original classification authority;

(3)  a supervisory official of either the originator or his or her successor in function, if the supervisory official has original classification authority; or

(4)  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 in the order as "an individual authorized in writing, either by the President, the Vice President, or by agency heads or other officials designated by the President, to classify information in the first instance." They can also determine when a document can be declassified: "At the time of original classification, the original classification authority shall establish a specific date or event for declassification based on the duration of the national security sensitivity of the information." 

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 in which "the authority to classify information originally may be exercised only by: (1) the President and, in the performance of executive duties, the Vice President." Prior to that, the vice president 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 vice president was an "original classification authority" in 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 vice president can decide to classify a CIA, NSA, or USDA document on the spot in the same way that any other [original classification authority] can." And all original classification authorities have "inherent declassification authority."

He added: "[...] the president has the power to declassify anything he wants, period, and as a matter of practice in the intelligence community, everyone treats the [vice president] as having the same power derived from the presidential authority unless the president specifically says "no the [vice president] does not have declassification authority outside of information he created," which has never happened." 

He added that such a practice "has never been challenged to my knowledge." 

"Most [original classification authorities (OCAs)] don't generally exercise that declassification authority, but that is a simple matter of practice," he said. "Most OCAs prefer to let the declassification specialists (e.g. the FOIA office, the lawyers, etc.) handle declassification matters, but the authority is still there."

We should note that there is some ambiguity in the executive orders. According to the New York Times, presidents are the highest level official with classifying authority but they "usually 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 New York Times that the 2003 Bush-era order does not explicitly say whether vice presidents have supervisory authority over departments and agencies for the purpose of declassifying information that they had deemed secret. Bush was seen as deputizing Cheney to exercise the same powers as he had, even though vice presidents were not normally part of the chain of command. But according to Aftergood, the scope of a vice president's declassification power has never been definitively tested. 

Brian Greer, a former attorney at the CIA's Office of General Counsel, told us that in practical terms the Vice President hardly uses this authority. He said that the Vice President does have the authority to "classify information originally" and "to declassify information that they or their predecessor originally classified."

"As a practical matter, the Vice President originally classifies little, if any, information -- rendering this declassification authority mostly moot. The only argument that the Vice President has declassification authority beyond that would rest on declassification authority provided for certain "supervisory officials," but as a general matter, the Vice President is not considered a supervisory official of Executive Branch officials," he said. 

While it's true in Biden's case — that is, given 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 in terms of the U.S. Justice Department's review of the files and the circumstances under which they were kept. Rather, at the center of that effort, as well as the department's probe into documents uncovered at Trump's property, is the fact that such government files, classified or declassified, should not have been at their private properties in the first place. They should have been handed over to the National Archives instead, per federal law.

The New York Times stated, "While the [2009] executive order governing the classified information system gives vice presidents the same power to declassify secrets as presidents wield, Mr. Biden has not claimed he declassified the materials found in the Penn Biden Center closet," the location of the first batch of documents found. After the news broke about the first batch of discovered documents, Biden said he did not know what information the documents contained.

Blanton, of the National Security Archive, concurred: "I know of no suggestion that Biden had declassified any of what has been found."

Trump, however, has made the law governing who can classify, and declassify, documents 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 power to declassify everything that turned up in the FBI search. Furthermore, he claimed that he could declassify documents simply at will.

Trump was correct that presidents have the power to declassify documents. But experts pointed out to Politifact in 2022 that merely declaring a document declassified, or thinking that it is, does not make it so; federal law governing government documents requires presidents to follow certain steps to officially turn a classified file into a declassified one, which include physically modifying its markings. 

Commenting on the documents uncovered at Trump's Mar-a-Lago property, a three-judge appellate panel of the Court of Appeals for the 11th Circuit noted in 2022 there was "no evidence that any of these records were declassified." And even if Trump had declassified the documents using the federally-mandated steps to do so, he was still bound by federal law that requires presidents to return all government documents — classified or unclassified — to the National Archives and Records Administration (NARA) when they leave office. Declassifying a document would not "render it personal," the court stated. 

In sum, under an Obama-era executive order, vice presidents have the authority to classify and declassify documents — just like presidents. Nonetheless, that fact was irrelevant to the DOJ's 2023 investigation into documents discovered at a former office and home of Biden.

[Related: 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.

"Analysis | 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 Just 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. 

Ibrahim, Nur. "Email interview with Brian Greer." 19 Jan. 2023.

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 New 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 New 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. 

"Second Batch of Classified Biden Documents Found." BBC News, 11 Jan. 2023. www.bbc.com, https://www.bbc.com/news/world-us-canada-64244007. Accessed 13 Jan. 2023.

Thrush, Glenn, and Charlie Savage. "Biden 'Surprised' to Learn Classified Documents Were Found in Private Office." The New York Times, 10 Jan. 2023.  https://www.nytimes.com/2023/01/10/us/politics/biden-documents-classified-foreign-countries.html. Accessed 13 Jan. 2023.

Thrush, Glenn, et al. "Trump Claims He Declassified Documents. Why Don't His Lawyers Say So in Court?" The New York Times, 22 Sept. 2022.  https://www.nytimes.com/2022/09/22/us/politics/trump-documents-declassification.html. Accessed 13 Jan. 2023.

Thrush, Glenn, et al. "Special Counsel Will Investigate Biden Documents Case." The New York Times, 12 Jan. 2023. https://www.nytimes.com/live/2023/01/12/us/biden-classified-documents. Accessed 13 Jan. 2023.

Updates

Jan. 16, 2023: Amended context box and article to reflect ambiguous language of executive order pertaining to limits of the vice president's authority.

19 Jan 2023: Added Brian Greer's commentary and amended context box.

Nur Nasreen Ibrahim is a reporter with experience working in television, international news coverage, fact checking, and creative writing.