President Joe Biden made headlines with news that he retained several classified documents at his office in the Penn Biden Center for Diplomacy and Global Engagement in Washington, DC. Most notable is that this seems to be precisely the alleged crime for which former President Donald Trump was pilloried late last year and that Biden claimed was dangerously “irresponsible.”
The Fourth Estate rapid response team was quick to draw distinctions between the two presidents, exonerating one and eviscerating the other. But what is the reality? Liberty Nation consulted Legal Affairs Editor Scott D. Cosenza, Esq. to ascertain the truth and sift the facts from the spin.
Mark Angelides: Let’s clear a couple of things up here, Scott. Trump’s defense from the beginning has been that, as the president, he could declassify anything he wanted at any time; therefore, any documents he had were declassified. Joe Biden had these documents stashed away since 2017; he doesn’t have that power as vice president, does he?
Scott D. Cosenza: As vice president of the United States, Biden certainly had the legal right to possess classified documents during his term. The president can declassify any document at any time, and various executive orders govern vice-presidential declassification. Those orders are not crystal clear on vice-presidential declassification, however. In 2006, Fox News’ Brit Hume asked Vice President [Dick] Cheney if he had the authority to declassify information, and he said yes, pursuant to an executive order (E.O. 13292).
Joe Biden (Photo by Drew Angerer/Getty Images)
The vice president definitely has the power to declassify documents he classified in the first place, at least while he still holds office. And any document that his office generated. We don’t know if that authority extends to other executive agencies, though. Before the laws were twisted and turned like pretzels in service to punish and attack Donald Trump, no one seemed to care, especially. I find the idea that Biden could or would be successfully prosecuted for holding on to previously classified documents preposterous but not quite as fantastic that Trump could be.
MA: I’m also curious to know whether Biden’s notorious forgetfulness is a mitigating factor legally. Now we know that at least two Biden menfolk have issues leaving documents, laptops, and the like and forgetting about them. Surely with the president having these documents in a cupboard, he either has to admit that he knew about them and didn’t want to hand them over, or he is perhaps criminally absentminded. Am I being unfair in this?
SDC: I fail to see why he has to do anything. If history is our guide, the administration will simply ignore the story. The big box media will function as a palace guard for President Biden by glossing it over or exhibiting willful blindness. Also, the decision to investigate and prosecute this type of case is political, made by Biden and Attorney General Merrick Garland. Will Biden’s DOJ prosecute Biden? That question answers itself.
MA: It’s hard to escape the political ramifications of this story. After all, the only reason we know about it is that Merrick Garland appointed a US attorney from Illinois to investigate the matter. The classified documents in question were discovered on Nov. 2, last year, just one week before the midterms. By sitting on the story for almost two months, surely Biden and the Democrats benefited politically from the delay?
SDC: That’s correct. Revealing yet more staggering hypocrisy from the Biden White House would not have helped Democrats at the polls.
MA: Sticking with the Garland issue, does it now become almost impossible for Donald Trump to be prosecuted or censured without drawing direct comparisons to the current president? It seems to me that, both optically and legally, this is a winning situation for the 45th president. What’s your analysis?
Donald Trump (Photo by Joe Raedle/Getty Images)
SDC: I didn’t think Trump would ever be prosecuted even before this disclosure of Biden’s negligence or malfeasance regarding classified documents. The president of the United States has absolute power over classifications and can, without telling anyone or filling out forms, declassify them. Commenters have derided this as “telepathic declassification,” amongst other clever quips, but that doesn’t change the law or the Constitution. The president’s power to do as he pleases regarding these documents seems quite clear.
MA: Based on the appointment of the US attorney to oversee the matter, would you say that both men are being treated equally in the eyes of the law?
SDC: No, there is no equal treatment. Somehow it became normalized to use every law in any way to punish, hurt, and hobble Donald J. Trump. From preposterous and novel legal claims like emoluments violations to the case of the classified documents driven by Archivist David S. Ferriero, a woke progressive. Donald Trump has always been blessed by his enemies, however, who are often guilty of similar or worse sins than they accuse him of. The same may well be true here. Trump’s claims over documents as a former president are likely far superior to Biden’s as a former vice president. That’s if it all wasn’t a burlesque in the first place, which it is.
MA: Finally, do you think Garland’s response to this situation will be considered part of the proposed House investigation into the weaponization of the DOJ and FBI?
SDC: I expect he’ll be called to testify and then assert claims of executive privilege, refusing to reveal the truth.
