Can a VP have classified materials/can they declassify - fact check

[inquiring mind]

I've seen several of Donald's ardent believers claim that Vice Presidents aren't allowed to have classified documents or that they don't have the ability to declassify.

The issue of access is easy to dismiss. Jack Teixeira is an Air Force Sr Airman had a top secret clearance, and while he couldn't take them home, he did have access to them. Same with your average 1st term member of Congress, defense contractor or communications specialist with the State Department. Vice President's have much greater access to sensitive documents than any of them do. But can a Vice President declassify?

According to a 2009 Executive Order yes.

Sec. 1.3. Classification Authority. (a) The authority to classify information originally may be exercised only by:​

​

(1) the President and the Vice President;​

According to this XO, Vice President's have the ability to classify and the ability to declassify.
Numerous fact checks have existed since Jan 2023 showing that to be the case.

Yes, vice presidents have the authority to declassify documents

Several VERIFY readers asked if a vice president can declassify documents. They can – here’s why.

www.wwltv.com

Fact check: Biden did have the authority to declassify documents as vice president

Legal experts told USA TODAY that Biden did have the authority to declassify documents when he was vice president under Barack Obama.

www.usatoday.com

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.

www.snopes.com

There's got to be a good fox & henhouse joke here... I just can't think of one right now.

 

[DaisyDay]

There's got to be a good fox & henhouse joke here... I just can't think of one right now.

I think we ran out of those back when Donald was appointing lobbyists to his cabinet.

 

[JacksBratt]

Except when they can.


Guilty of what, exactly?

Biden was never in a state of power to "de-classify" or posses classified documents. Neither was Pence... Pence apologized.

"Guilty of what"

Well, if DT is guilty for having documents that he actually held the power to declassify and posses.... and he is being incicted.... Why are Biden and Pence not indicted? They never had that power...

It's like watching two cars speed by you... followed by a police car, in chase, and the police officer is charged for speeding...while the two other cars are not...

 

[SimplyMe]

Biden was never in a state of power to "de-classify" or posses classified documents. Neither was Pence... Pence apologized.

"Guilty of what"

Well, if DT is guilty for having documents that he actually held the power to declassify and posses.... and he is being incicted.... Why are Biden and Pence not indicted? They never had that power...

It's like watching two cars speed by you... followed by a police car, in chase, and the police officer is charged for speeding...while the two other cars are not...

You misunderstand the charges and why they were brought. Let's forget about any of the documents being classified, at the moment, to examine what occurred.

Trump, Biden, and Pence all ended up with records that were "Presidential documents" (or "records) from their time in office (the VP's documents are more or less considered to be "Presidential records" as they were part of the Administration). The Presidential Records Act (PRA) require all Presidential documents (or records, from both the President and the Vice President) to be turned over to the National Archive (NARA). For the moment, let us assume that none of them had any knowledge (since their offices, when they leave the White House, are typically packed by staffers), at least that can be proven, that they had the documents.

In the case of Pence and Biden, the evidence suggests that both turned over the documents that were found, as soon as they were found and identified as Presidential records. In Trump's case, NARA found that various records had not been turned over by Pres. Trump, and they asked former Pres. Trump to return them. While former Pres. Trump ultimately returned some papers, he did not turn over all the records NARA had asked for. After dealing with it for six months or so, where they felt they were being stonewalled, they followed the steps listed in the PRA for assistance in getting the documents returned -- they contacted the DoJ.

The DoJ contacted former Pres. Trump and were not able to get the documents turned over, so they went to court -- the court issued a subpoena requiring former Pres. Trump to turn over all the documents. At this point, Trump's attorneys said there were a few more documents that had been found and they were ready to turn them over -- and (based on statements former Pres. Trump allegedly made to them), the lawyers (under oath) claimed that all the Presidential records had been returned.

Shortly after this, the FBI had informants tell them that former Pres. Trump was still holding documents, that some of the documents were Classified, in various areas of Mar-A-Lago. At this point, based on the reports, the FBI went to court to get a search warrant to find any documents still being held by the former president. The FBI raid found quite a bit of material, including over 100 Classified documents.

If former Pres. Trump had turned over the documents when first requested by NARA, there would have been no charges. In fact, if former Pres. Trump had complied with the subpoena, no charges would have been filed. The reason for charges now is because former Pres. Trump did not comply with a court order and is alleged to have been willfully hiding classified documents.

Now, if it is found that VP Pence is intentionally hiding documents, he would likely be charged. The same with Pres. Biden -- with the caveat that he is being investigated by a Special Prosecutor -- and if the prosecutor finds he broke the law, particularly if he can show that Pres. Biden knowingly kept the documents, he will likely be charged (though it would need to wait, under DoJ procedures, until Biden is no longer the President).

The law is being used consistently, just that the three circumstances, from what we currently know, are not the same. We have no evidence that Biden and Pence knew they had the documents and they were returned as soon as they were found. By contrast, Pres. Trump allegedly knew he had them and was hiding them from the government, which is why he was being charged.

To take it back to Classified documents for a moment, it is still no better for Trump. Yes, while President, Trump could have declassified the documents. Unfortunately, their are tapes (and one specifically) where Trump is allegedly showing people a classified document and admits he could have declassified it but hadn't, and he can't declassify it now since he is no longer President.

 

[Ana the Ist]

PART 3 -- DECLASSIFICATION AND DOWNGRADING

Sec. 3.1. Authority for Declassification. (a) Information shall be declassified as soon as it no longer meets the standards for classification under this order.

(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.

(c) The Director of National Intelligence (or, if delegated by the Director of National Intelligence, the Principal Deputy Director of National Intelligence) may, with respect to the Intelligence Community, after consultation with the head of the originating Intelligence Community element or department, declassify, downgrade, or direct the declassification or downgrading of information or intelligence relating to intelligence sources, methods, or activities.

(d) It is presumed that information that continues to meet the classification requirements under this order requires continued protection. In some exceptional cases, however, the need to protect such information may be outweighed by the public interest in disclosure of the information, and in these cases the information should be declassified. When such questions arise, they shall be referred to the agency head or the senior agency official. That official will determine, as an exercise of discretion, whether the public interest in disclosure outweighs the damage to the national security that might reasonably be expected from disclosure. This provision does not:

(1) amplify or modify the substantive criteria or procedures for classification; or

(2) create any substantive or procedural rights subject to judicial review.

(e) If the Director of the Information Security Oversight Office determines that information is classified in violation of this order, the Director may require the information to be declassified by the agency that originated the classification. Any such decision by the Director may be appealed to the President through the National Security Advisor. The information shall remain classified pending a prompt decision on the appeal.

(f) The provisions of this section shall also apply to agencies that, under the terms of this order, do not have original classification authority, but had such authority under predecessor orders.

(g) No information may be excluded from declassification under section 3.3 of this order based solely on the type of document or record in which it is found. Rather, the classified information must be considered on the basis of its content.

(h) Classified nonrecord materials, including artifacts, shall be declassified as soon as they no longer meet the standards for classification under this order.

(i) When making decisions under sections 3.3, 3.4, and 3.5 of this order, agencies shall consider the final decisions of the Panel.

 

[Ana the Ist]

So that's the entire declassification section....and I'm not seeing any section where thr Vice President is given declassification authority.

Feel free to point it out though if I missed it.

 

[Arcangl86]

So that's the entire declassification section....and I'm not seeing any section where thr Vice President is given declassification authority.

Feel free to point it out though if I missed it.

3.1(1) would apply for anything originated by his office.
3.1(3) arguably applies, though apparently there is not a consensus of if the VP counts as a supervisory official or not.

 

[Ana the Ist]

3.1(1) would apply for anything originated by his office.

Sure.

3.1(3) arguably applies, though apparently there is not a consensus of if the VP counts as a supervisory official or not.

I don't see how he would be a supervisory official unless designated as so by the president.

For example, Harris was put "in charge" of the border in the first month of the Biden Administration. While Mayorkas might be the head of the Department, I could see why Harris could be considered the supervisor of Mayorkas.

Finally, we're only talking about an executive order, right? This wasn't later passed as a law by the legislature, right?


Because I was under the impression these could be rescinded or ignored at will by any current president. For example, Biden rescinded the order against CRT in all federal training and they began implementing it in places (which has been a disaster) like the military. Other executive orders like "remain in Mexico" didn't get rescinded (at least I think it's still in place) but it's completely ignored by Biden and no one has to wait in Mexico for their asylum hearing.

 

[Arcangl86]

I don't see how he would be a supervisory official unless designated as so by the president.

For example, Harris was put "in charge" of the border in the first month of the Biden Administration. While Mayorkas might be the head of the Department, I could see why Harris could be considered the supervisor of Mayorkas.

I think it boils down to the fact that the VPs role in the hierarchy is unclear. And for the last 20 years or so the VP has been given more explicit authority by the President. And the fact that the VP will automatically become President if something were to happen makes it less clear.

Finally, we're only talking about an executive order, right? This wasn't later passed as a law by the legislature, right?

Correct. Pretty much the entire classification system is governed by Executive Order, though there is the related concept of "national defense information" created by statute.

Because I was under the impression these could be rescinded or ignored at will by any current president. For example, Biden rescinded the order against CRT in all federal training and they began implementing it in places (which has been a disaster) like the military. Other executive orders like "remain in Mexico" didn't get rescinded (at least I think it's still in place) but it's completely ignored by Biden and no one has to wait in Mexico for their asylum hearing.

EO can be rescinded by the current president. For instance, one of the first action of both Trump and Biden was to rescind some EOs of their predecessors. Regulations such as "remain in Mexico" are different because they need to be passed, changed or repealed under the Administrative Procedures Act. That's why Biden was required to keep "remain in Mexico." And even though EOs can be rescinded at anytime, they can't be ignored while they are in effect.

Though I don't think it's really relevant since the EO in question was issued during the Obama Admin and not changed.

 

[JacksBratt]

You misunderstand the charges and why they were brought. Let's forget about any of the documents being classified, at the moment, to examine what occurred.

Trump, Biden, and Pence all ended up with records that were "Presidential documents" (or "records) from their time in office (the VP's documents are more or less considered to be "Presidential records" as they were part of the Administration). The Presidential Records Act (PRA) require all Presidential documents (or records, from both the President and the Vice President) to be turned over to the National Archive (NARA). For the moment, let us assume that none of them had any knowledge (since their offices, when they leave the White House, are typically packed by staffers), at least that can be proven, that they had the documents.

In the case of Pence and Biden, the evidence suggests that both turned over the documents that were found, as soon as they were found and identified as Presidential records. In Trump's case, NARA found that various records had not been turned over by Pres. Trump, and they asked former Pres. Trump to return them. While former Pres. Trump ultimately returned some papers, he did not turn over all the records NARA had asked for. After dealing with it for six months or so, where they felt they were being stonewalled, they followed the steps listed in the PRA for assistance in getting the documents returned -- they contacted the DoJ.

The DoJ contacted former Pres. Trump and were not able to get the documents turned over, so they went to court -- the court issued a subpoena requiring former Pres. Trump to turn over all the documents. At this point, Trump's attorneys said there were a few more documents that had been found and they were ready to turn them over -- and (based on statements former Pres. Trump allegedly made to them), the lawyers (under oath) claimed that all the Presidential records had been returned.

Shortly after this, the FBI had informants tell them that former Pres. Trump was still holding documents, that some of the documents were Classified, in various areas of Mar-A-Lago. At this point, based on the reports, the FBI went to court to get a search warrant to find any documents still being held by the former president. The FBI raid found quite a bit of material, including over 100 Classified documents.

If former Pres. Trump had turned over the documents when first requested by NARA, there would have been no charges. In fact, if former Pres. Trump had complied with the subpoena, no charges would have been filed. The reason for charges now is because former Pres. Trump did not comply with a court order and is alleged to have been willfully hiding classified documents.

Now, if it is found that VP Pence is intentionally hiding documents, he would likely be charged. The same with Pres. Biden -- with the caveat that he is being investigated by a Special Prosecutor -- and if the prosecutor finds he broke the law, particularly if he can show that Pres. Biden knowingly kept the documents, he will likely be charged (though it would need to wait, under DoJ procedures, until Biden is no longer the President).

The law is being used consistently, just that the three circumstances, from what we currently know, are not the same. We have no evidence that Biden and Pence knew they had the documents and they were returned as soon as they were found. By contrast, Pres. Trump allegedly knew he had them and was hiding them from the government, which is why he was being charged.

To take it back to Classified documents for a moment, it is still no better for Trump. Yes, while President, Trump could have declassified the documents. Unfortunately, their are tapes (and one specifically) where Trump is allegedly showing people a classified document and admits he could have declassified it but hadn't, and he can't declassify it now since he is no longer President.

I don't care if they turned over the documents when asked... That's like telling a theif it's OK if he just returns the Ferrari he stole... But arresting the owner of a Porshe because he didn't give the car to the police when, in fact, it was totally and legally his property.

This case, and the cases of DT, Biden and Pence... are all nothing burgers anyway. They are smoke screens and distractions for the failing house of cards of the Hunter and Joe corruption of the Biden family... for years..... that is slowly unfolding.

 

[DaisyDay]

I don't care if they turned over the documents when asked... That's like telling a theif it's OK if he just returns the Ferrari he stole... But arresting the owner of a Porshe because he didn't give the car to the police when, in fact, it was totally and legally his property.

If the documents were not deliberately taken then it is not theft. When documents are returned upon discovery, that is not theft. Deliberately, knowingly taking documents that are the property of the government and not of a temporary representative is theft. Refusing to return specific documents and all documents marked as classified is obstruction. Hiding the documents from your own lawyers to dupe them into signing an affidavit swearing, falsely, that due diligence was performed and all wanted documents had been returned is obstruction and lying to the FBI. Hiding and moving boxes of documents to another state is theft and obstruction. Showing classified documents to unauthorized people is espionage, apparently.

This case, and the cases of DT, Biden and Pence... are all nothing burgers anyway. They are smoke screens and distractions for the failing house of cards of the Hunter and Joe corruption of the Biden family... for years..... that is slowly unfolding.

The more that is uncovered concerning Donald, the louder the hysteria over Biden becomes.

 

[SimplyMe]

I don't care if they turned over the documents when asked... That's like telling a theif it's OK if he just returns the Ferrari he stole... But arresting the owner of a Porshe because he didn't give the car to the police when, in fact, it was totally and legally his property.

No, it actually isn't. And if you are claiming that the records were Trump's, that is false; federal law clearly states the records belong to the government.

A better example is likely the idea that three people have contracts with a company and their contract ends. The company, once the contract is finished, pack the desks of these employees while they are in a final meeting. Two of the people, when they go back and look, discover some documents that belong to the company were accidentally packed in with their possessions, immediately inform the company and return them. The company cannot go after them for theft as there is no evidence they stole them and, as soon as they realized they possessed them, they returned them.

The third person not only realized he had them but started showing them to friends. When the company approached him about returning them he returned some but appeared to want to keep others, so didn't return them all. Eventually the company gets tired of the "games" about getting their documents back and contract law enforcement, who get a search warrant and find the documents. At that point the documents are considered "stolen" and this employee can be charged with "theft."

Now, if you have evidence that either Pence or Biden packed their own desks (it is typically done by White House movers while they are taking part in the inauguration of the new President) or that they knew they had the documents prior to when they were found, I'd love to hear it. To this point, no one has or knows of such evidence so there is no "theft."

This case, and the cases of DT, Biden and Pence... are all nothing burgers anyway. They are smoke screens and distractions for the failing house of cards of the Hunter and Joe corruption of the Biden family... for years..... that is slowly unfolding.

No, the case against Trump is not a "nothingburger." I'll be interested to see how the case proceeds, particularly with a Trump supporting judge and likely a jury that is friendly to Trump (a jury from South Florida). Of course, this is only one of the set of indictments that it appears Trump will have to defend as Jack Smith continues to investigate, not to mention the trial in Georgia which, per the leaked recordings, sound as if Trump could have major issues defending his actions.

 

[JacksBratt]

If the documents were not deliberately taken then it is not theft.

That's funny. I know that Joe is not the sharpest knife in the drawer.. But, he had all these classified documents, in his garage, and was totally unaware?

What exactly does that say about the leader of one of the most powerful countries of the world?

Like I said... nothing will come from this. It's a distraction

 

[DaisyDay]

That's funny. I know that Joe is not the sharpest knife in the drawer.. But, he had all these classified documents, in his garage, and was totally unaware?

All these? Exactly how many total were there?

What exactly does that say about the leader of one of the most powerful countries of the world?

Like I said... nothing will come from this. It's a distraction

Sure, but the reverse of what you're claiming.

 

[Ana the Ist]

I think it boils down to the fact that the VPs role in the hierarchy is unclear. And for the last 20 years or so the VP has been given more explicit authority by the President. And the fact that the VP will automatically become President if something were to happen makes it less clear.

Correct. Pretty much the entire classification system is governed by Executive Order, though there is the related concept of "national defense information" created by statute.

EO can be rescinded by the current president. For instance, one of the first action of both Trump and Biden was to rescind some EOs of their predecessors. Regulations such as "remain in Mexico" are different because they need to be passed,

I didn't realize Remain in Mexico was legislation that was passed. Do you remember the bill?

changed or repealed under the Administrative Procedures Act. That's why Biden was required to keep "remain in Mexico." And even though EOs can be rescinded at anytime, they can't be ignored while they are in effect.

Well that's debatable....do we have an example of a president being forced to follow an executive order that he didn't rescind?

Though I don't think it's really relevant since the EO in question was issued during the Obama Admin and not changed.

Yeah...it would relevant to the documents Joe took, and may still have, from his time in VP. I don't know if it's relevant to Trump's case.

 

[RocksInMyHead]

That's funny. I know that Joe is not the sharpest knife in the drawer.. But, he had all these classified documents, in his garage, and was totally unaware?

What exactly does that say about the leader of one of the most powerful countries of the world?

It's not like they were lying around in the open. They were in boxes, locked in a cabinet. Unless he had a specific need for something out of one of those boxes or a desire to reminisce about his time as Vice President, there's really no reason why he would have even opened them, let alone seen the contents.

Aside from the classification markings, which you'll only see if you, y'know, look at the document, classified documents are indistinguishable from any other papers. They don't have alarms, they don't have flashing lights, they don't sing "I'm a classified document and I'm okay" on repeat. If they're in a box that you didn't pack and you've never opened, there is no possible way that you could know they were there.

 

[JacksBratt]

It's not like they were lying around in the open. They were in boxes, locked in a cabinet. Unless he had a specific need for something out of one of those boxes or a desire to reminisce about his time as Vice President, there's really no reason why he would have even opened them, let alone seen the contents.

DT's were locked up... Joe's were laying out in the garage... and at other locations... He said he didn't know he had them.. I don't lock up things that I am unaware of having.

Aside from the classification markings, which you'll only see if you, y'know, look at the document, classified documents are indistinguishable from any other papers. They don't have alarms, they don't have flashing lights, they don't sing "I'm a classified document and I'm okay" on repeat. If they're in a box that you didn't pack and you've never opened, there is no possible way that you could know they were there.

Not sure who you are talking about here... I think that, if I was VP and had boxes of documents in my garage.. I would know about them.

 

[RocksInMyHead]

DT's were locked up...

Some of them were, some of the time, but whether or not they were locked up is irrelevant - what is relevant is that he knew that he had classified documents. We know that he knew this because he personally asked to have boxes brought to him so that he could go through them, classified documents were found in his desk and personal safe, and he is on tape apparently showing one of those classified documents to an author (and talking about how it's still classified).

The only reason we're discussing whether or not Biden's were locked up is because you've implied that they were lying out in the open in his garage, where he must have seen them. The documents being kept in boxes locked up in a cabinet (i.e. not visible to casual observation) counters that narrative. Provided he didn't go through those boxes, he would not know that they contained classified documents. If you have evidence that they were scattered about in plain view or that Biden did go through his boxes of documents, I'm sure the special counsel investigating the matter would like to see it.

Joe's were laying out in the garage... and at other locations...

Evidence for this? Everything I've seen says that they were kept locked up.

He said he didn't know he had them.. I don't lock up things that I am unaware of having.

I'm certain that he knew that he had boxes of documents from his vice-presidency - no reason to not keep those in a locked cabinet if one is available. That's a reasonable thing to do with one's personal papers. However, there's no evidence that he knew there were any classified documents in those boxes.

Not sure who you are talking about here... I think that, if I was VP and had boxes of documents in my garage.. I would know about them.

Good for you, I guess? However, I'm reasonably certain that you are not Joe Biden, so what you would do is irrelevant.

 

[SimplyMe]

Not relative... One is too many. Pictures indicated more than one...and.. at different locations as well

The same is true of Trump, regardless of your claims.

DT was fully authorized to have documents that he had. He was the president.

No, Donald Trump was the former President, not the President. Once he left office he was not authorized to have any of the Presidential Records; even the non-classified ones.

Pense was not... Biden was not...

They had every bit as much right as former President Trump. While they were office, they were fully allowed to have the documents -- just as Trump was.

Obama had documents.. perfectly legal...

I'm not aware of former President Obama having any documents. If you are referring to the "furniture warehouse" -- that was the National Archives, who set up a place in Chicago to hold the documents while they were scanned, for the Obama library, and prepared for long term storage. I'd be really interested for any evidence you could show that Obama had any documents once he left office.

Hillary... not the president.. wiped her hard drives and smashed phones with hammers... (all fact check true).

That's nice but completely different. Yes, when she left office she wiped her hard drive, but not before providing a copy of it to the State Department for them to keep in their archives, as required by law.

And, yes, if your phone breaks when it is authorized to hold Classified information (as the Secretary of State's phone is) then, when it is replaced, you smash it to ensure that the phone cannot be compromised or documents retrieved. This is what Sec. Clinton did -- she did not have a bunch of phones and have them smashed all at once; instead, what has been reported, is that she often had issues with phones and, when one quit working properly she'd replace it, and have the old one smashed (as regulations require). Besides, phones are not where the documents are stored (though there may be some in cache memory, part of the reason to smash the phone), they merely connect to the servers that hold the Classified Information -- so smashing a phone should not have destroyed any information.

There is a two tier system of justice fully on display here. Another example is the Felony of false information on a gun application, by Hunter, that others have received jail time for... but... he gets a pass.

The FBI, DOJ and CIA are owned by the Democrats and are being used as a weapon against any person on the "right".

Yes, that is why VP Pence has not been charged (with apparently no further investigation), right? Not to mention Rep. Gaetz, who appears to have broken some laws with his teen girl obsession, but was never charged. I'll agree there is a two tier system of justice but it is not right/left, it is rich and poor.

 

[DaisyDay]

Not relative... One is too many. Pictures indicated more than one...and.. at different locations as well

Why not?

DT was fully authorized to have documents that he had. He was the president. Pense was not... Biden was not... Obama had documents.. perfectly legal... Hillary... not the president.. wiped her hard drives and smashed phones with hammers... (all fact check true).

Each person you named was allowed to have what they did at some point, which was during their time in office. However, Donald decided that anything he touched belonged to him forever, which was a mistake. He has lied and obstructed to keep hold of what is no longer his now that he is not president.

There is a two tier system of justice fully on display here.

There are a lot more than a mere couple of tiers, but this is Donald's current talking point.

Another example is the Felony of false information on a gun application, by Hunter, that others have received jail time for... but... he gets a pass.

Off topic.

The FBI, DOJ and CIA are owned by the Democrats and are being used as a weapon against any person on the "right".

That's factually inaccurate. It's the Republicans who are trying to weaponize the government against individuals.