Analysis 01-25-2023


Does the Biden Secret Documents Case Create a “Tipping Point?”


Has the Biden secret documents affair reached critical mass?  It seems so.

Biden’s approval numbers, which had started inching up are now back down into the high 30% range.

The media, which has given some of Biden’s behavior a pass, are starting to ask serious questions that are upsetting the president even though there is no threat that he will be impeached.  He snapped at a reporter on Thursday, saying that this line of inquiry was beginning to “bug” him.  He added that he “had no regrets.”

Eventually, he will have regrets.  Not only has he given Republicans plenty of political ammunition, but the affair also gives more visibility to the Hunter Biden influence peddling issue.

In addition, Biden has stopped the Democrats from attacking Trump on the issue of keeping classified documents.  The fact is that Democrats are anxious to bury this issue, even if it lets Trump off.


What is the Law on Classified Documents?

Generally, there are three levels of classified documents: Confidential, Secret, and Top Secret.  However, some agencies have additional levels of classified documents.  There is also a difference between agencies of what definition there is for each level of classification.

The lowest classification is “confidential. It is defined as information that would “damage” national security if disclosed.

The next highest level is “secret,” which is defined as causing “serious damage” to national security if disclosed.

The highest level is “top secret”, which is defined as causing exceptionally grave damage to national security if disclosed.

The problem is deciding what fits into each category and who should have these classifications.  As of 2019, 1.25 million individuals have a top secret clearance, even though few of those people will need that level of clearance.

Although no one knows for sure, about 50 million documents are classified each year.  Most are national security documents.

No one knows how many documents are classified because there is no central depository for these documents.

So, who oversees classifying and declassifying documents?  It is the president, who as head of the executive branch and Commander-in-Chief of the military has sole authority.  He may designate some of his authority to others like the National Archives, but the courts have made it clear in several rulings that the sole authority in the Executive branch of the government resides in the president.

Where does that leave the Vice President?  Nowhere.  Constitutionally, the Vice President is not part of the Executive Branch.  His only Constitutionally authorized job is President of the Senate – a legislative function.  He has no other authority unless the president is dead or declared unable to hold office.

The Vice President has no authority to hold classified documents or to declassify them.  He has no authority to demand that the president confide classified information to the Vice President.

An excellent example of this was the secret of the atom bomb during WWII.  Until Franklin Roosevelt died, Vice President Truman was unaware that the US had built an atomic bomb.  It was only after becoming president that he was let in on the top-secret project.

Although Obama could allow Biden to read and keep classified documents in his secure office, Biden was Constitutionally unable to classify or declassify documents – unless authorized by Obama.  And any authority granted by Obama to Biden ceased at noon January 20th 2017.

This clearly leaves Biden in jeopardy.  He had no authority to hold those documents, especially in unsecured places like his home.  Meanwhile Trump had the authority to declassify any documents he wanted until Noon January 20, 2021.

The National Archive may claim that it is the authority on classifying, but constitutionally, that authority resides in the office of the president and has only been granted to the Archives and can be withdrawn if the president so desires.


So, What Happens Now?

Clearly, the Department of Justice will find its hands tied in this case.  Biden appointed Attorney General Garland is politically limited.  He can’t indict Trump with Biden’s behavior ignored.  There’s also the possibility that the courts would find for Trump.

The biggest problem for the Department of Justice and the FBI is the growing perception that there are two types of justice – one for the elites and one for the public.  While Trump’s home was raided by the FBI, the DoJ wouldn’t allow FBI agents to look at the Biden documents in question.  Voters have noticed that, and it is damaging the reputation of the FBI.  In fact, it is so serious that there are calls by some Republicans in Congress to abolish the FBI.

Who benefits the most?  This is where the theories come.  There is a solid argument that some Democrats worried about Biden’s mental health and likelihood of losing the presidency in 2024 want to sully his reputation so another candidate will win the nomination and the election.

Unfortunately, the Democrats don’t have a plausible alternative.  VP Harris is considered incompetent to be president and other alternative options like Bernie Sanders are too old.  California Governor Newsome may seem too radical for Middle America and Transportation Secretary Pete Buttigieg is fumbling his duties as seen in the recent airline snafu.  Other potential candidates who would normally announce in the coming months will be forced to hold back.

On the Republican side, Trump comes out looking better.  The documents issue seems to be a case of “everyone else is doing it.”  The FBI raid on Trump’s place shrinks in importance as is clear that the FBI gave Biden preferential treatment and is now trying to justify not using the FBI as they did with Trump and his home.

There will also be questions about Hunter Biden and the FBI hiding evidence of his influence peddling.

Rest assured that the Republican House of Representative will keep the classified documents issue alive and tie it into the behavior of Hunter Biden.

China, which already has problems with its relations with the US, will find itself trying to justify the location of some of the classified documents in the Biden Think Tank, which was funded to a large part by the Chinese.

This affair has weakened Biden and he knows it.  Not only has this benefitted his likely opponent, Trump, he now has a Republican House majority to deal with.  And, probably worse of all, the once friendly media is asking questions.

Tipping points in a presidency are to be feared.  For Nixon, it was the release of the oval Office tapes.  For Carter, it was the Iranian Hostage Crisis.

This week is the halfway point of the Biden presidency.  If he can’t turn things around, this affair can not only impact his domestic agenda, but also how other countries like Russia and China view him.