Classified Docs Bring New Controversy

By: Michael Bicksel ‘25 Contributor

In the last month, multiple batches of classified documents have turned up in President Biden’s private offices and Wilmington home. The subject of those documents remains unknown, but they broadly pertain to American foreign policy, with focuses on Iran and Ukraine. The time periods in which those documents were produced is also unknown, though they appear to be from Biden’s time as vice president, specifically from around 2013 to 2019. The total number of documents, at the time of writing, is in the teens.

Many in the media are comparing this new debacle to the recent raid of former President Trump’s Mar-aLago estate. There are, of course, a handful of key differences. Trump retained hundreds of documents, while Biden retained less than twenty. Biden handed over the documents immediately, while Trump returned some, but not all, of his documents. The FBI conducted a raid to retrieve Trump’s documents, while lawyers without proper security clearance stumbled upon Biden’s.

Before jumping headover-heels into conspiracy theories, left wing or right wing, it’s worth consulting the law books to see where things stand. So, what does the president need to do to declassify information? First, he must identify the information as being worthy of classification, and second, he must communicate that he is moving to declassify. Those two general rules-of-thumb come from Executive Order 13526, the most recent executive action dealing with declassification procedures, which was issued in 2009 by President Obama. Theoreti- cally, the president need not follow such procedures, as there is some precedent for “waiving” a preexisting executive order without publicly repealing it. That said, it has never been done or argued in court.

Aside from the actual declassification procedure (which, for the record, neither Trump or Biden followed), the looming concern remains the president’s duty to the American people. Under the Constitution, the president must fully and faithfully execute the laws of the United States. To breach that duty, one must establish some wrongdoing on the part of the president, or mens rea (“guilty mind” in Latin). The Constitution is vague on what that wrongdoing could be, so the Espionage Act of 1917 provides the legal framework. It says, in so many words, that public officials cannot intentionally try to harm the United States or its citizens. That’s a pretty high bar, and, while Trump and Biden were (recklessly) negligent, there’s nothing in the record to show that they wanted to harm the American people (for reference, Biden seems genuinely to have not known about any of the classified documents, and Trump, despite what some conspiracy theories have alleged, seems to have kept classified documents as momentos or trophies from his presidency).

So where does that leave us? To be frank, it’s a legal gray area we’ve never explored. Neither Trump nor Biden followed declassification procedures, but neither intended to aid American enemies. They were both grossly negligent, but that’s not enough to convict them under existing law. The closest we come to that theory is strict liability, the lowest level of mens rea, which says that someone need not know that they are committing a crime to be guilty. The problem is that it remains in its infancy and is used mainly for low level traffic violations and rape cases. No serious lawyer has tried to apply strict liability to this case. So will either Trump or Biden face any repercussions? My guess is probably not. Unlike regular citizens, the president is the classification authority—he need not gain clearance to view or declassify documents. So long as that’s the case, there’s not much the DOJ can do. There are two concurrent special counsel investigations into the respective cases, and only time will tell what they find. But until something— anything—proves that either Trump or Biden intentionally retained classified materials, there’s just not much that they can do.