U.S. Attorney General Merrick Garland has appointed a special counsel to investigate documents with classified markings found at President Joe Biden’s Delaware home and a Washington, D.C. office. The documents were from Biden’s time as vice president.
This has prompted comparisons to the discovery of hundreds of classified documents at former President Donald Trump’s Mar-a-Lago estate. Trump has claimed that the documents found at his Florida estate were “all declassified.”
While Biden has not claimed he declassified the documents found at his home and office, that hasn’t stopped some people on social media from claiming the vice president “does not have the authority” to declassify documents – implying Trump’s defense would not apply to Biden.
Several VERIFY readers asked the team if the vice president can declassify documents.
THE QUESTION
Can the vice president declassify documents?
THE SOURCES
- Executive Order 13526
- Kel McClanahan, executive director of the National Security Counselors, a nonprofit public interest law firm
- Richard Immerman, Edward J. Buthusiem Family Distinguished Faculty Fellow in History at Temple University
THE ANSWER
Yes, the vice president can declassify documents.
WHAT WE FOUND
There is “zero truth” to the claims that vice presidents cannot declassify documents while they are in office, Kel McClanahan, executive director of the National Security Counselors, told VERIFY.
Richard Immerman, a historian and professor at Temple University, agrees. Biden had the ability to declassify documents when he served as vice president during the Obama administration, he said in an email.
A vice president’s authority to declassify information stems from Executive Order 13526, which former President Barack Obama issued in 2009 when Biden was vice president. That order specifies who is allowed to classify and declassify information.
It says that “the authority to classify information originally may be exercised only by the President and Vice President,” as well as “agency heads and officials designated by the president.”
There are four categories of people who can declassify a document under the executive order: the official who originally classified it, their successor, a supervisory official of either the originator or their successor, or officials given declassification authority in writing by an agency head.
The executive order “explicitly names the vice president as one of the original classification authorities,” which means they could declassify any information their office originally classified, McClanahan explained.
But what about documents that were originally classified by other offices or agencies? Though some experts have differing opinions on whether vice presidents are considered supervisory officials, McClanahan said the vice president has the same wide-ranging authority to declassify documents as the president.
“As a matter of academic constitutional law, there may be a question of whether or not the vice president is in that chain of command that can declassify things,” McClanahan said. “However, as a matter of practice for at least the last ten years, if not much longer, it's been a longstanding practice in the executive branch to say that the vice president has delegated authority from the president and should be treated as pretty much the same.”
There are some other exceptions to what the president or vice president can declassify, including information dealing with nuclear secrets. This information is governed by a separate law called the Atomic Energy Act.
The president could also explicitly forbid the vice president from declassifying a specific piece of information, McClanahan said.
