Fact check: Biden did have the authority to declassify documents as vice president
The claim: Biden did not have the authority to declassify documents as vice president
A Jan. 12 Instagram reel (direct link, archived link) shows a clip of President Joe Biden answering a question from Fox News' Peter Doocy about a batch of classified documents that were found at Biden's home.
"This Clown show is going to need a bigger tent," reads the post's caption. "Biden did NOT have the authority to declassify documents that were classified in his position of Vice President during the Obama administration. Only the President can declassify, classified documents, not the Vice President. So why were these documents in his possession?"
The post generated nearly 7,000 likes in less than a week.
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OUR RATING: FALSE
Legal experts told USA TODAY that Biden had the authority to declassify documents as vice president as the result of a 2009 executive order signed by President Barack Obama.
House Republicans are launching an investigation after Biden’s attorneys found classified documents dating back to his years as vice president at his private office in Washington D.C. and in the garage of one of his Delaware homes.
The revelation has prompted comparisons between Biden's case and the discovery of classified records at former President Donald Trump’s Mar-a-Lago estate in August 2022.
But this claim is wrong about the nature of Biden's classification power.
The claim that Biden did not have the authority to declassify documents as vice president is “complete nonsense,” Kel McClanahan, executive director of National Security Counselors, a public-interest law firm, told USA TODAY in an email.
The Instagram reel provides no evidence to support the claim, as the Fox News clip does not make this assertion.
McClanahan, who also teaches at the George Washington University Law School, said that under a 2009 executive order signed by Obama, the vice president is included in a list of "original classification authorities," meaning Biden had the power declassify anything he classified.
The Washington Post also reported vice presidents have the authority to declassify anything they classified. The New York Times similarly reported that the vice president has the power to declassify, while noting the scope of that authority "has never been definitively tested."
Materials that could be classified include military plans, foreign government information or scientific, technological or economic matters relating to national security, according to the order.
"It is longstanding practice in the executive branch to treat the vice president as having the same amount of authority in that respect as the president unless the president explicitly says otherwise," McClanahan said.
Fact check: False claim that Biden ordered the FBI search of Trump's Mar-a-Lago estate
Bradley Moss, a national security attorney at the law office of Mark S. Zaid, PC, agreed that Biden held declassification authority as vice president.
"Vice presidents would (also), at least according to the minimal FOIA case law on the subject, be bound by the same declassification procedures that ostensibly apply to a president," Moss said.
One such procedure includes a vice president having to notify any agency affected by the declassification of certain material beforehand, according to Neama Rahmani, a former federal prosecutor and president of West Coast Trial Lawyers.
The 2009 executive order is still in effect, David Weinstein, former assistant U.S. attorney, told USA TODAY in an email.
A variation of the 2009 executive order was implemented through executive order by former President George W. Bush in 2003, Weinstein said.