OPINION:
Everyone has a sock drawer. Some are in a dresser. Others are more metaphorical. But in the end, everyone has a place where they keep prized possessions.
This includes presidents and vice presidents. We have heard about former President Bill Clinton’s sock drawer. And now we have heard about President Biden’s. But unlike Mr. Clinton’s, Mr. Biden’s “sock drawer” was his home, the Penn Biden Center, the University of Delaware, and with his ghostwriter.
And neither Mr. Clinton nor Mr. Biden is alone in keeping classified information in nonsecure locations. Apparently, all presidents and vice presidents do.
How do we know? Because the White House said so. In a letter last Sept. 11 to special counsel Robert Hur, Richard Sauber, special counsel to the president, wrote, “For at least 30 years, the Government — including specifically the Department — has been aware that former presidents and vice presidents frequently have possessed diaries, notes, draft manuscripts, and other writings that contained classified information.”
The White House did not end there. It continued, “At no time has the Government sought to ensure that such material was maintained in a location certified to store classified material, much less initiated a criminal investigation into the failure to do so.”
In case Mr. Hur, like Mr. Biden, is an “elderly man with a poor memory,” the White House made clear that the sock-drawer culprits include Presidents Jimmy Carter, Ronald Reagan, George H.W. Bush, George W. Bush and Barack Obama, and Vice Presidents Dick Cheney and Mike Pence.
Although Mr. Clinton isn’t included in this list, we know from his biographers that he too took classified information with him when he left the White House: He “talked about ordering cruise missile strikes to try to kill Osama bin Laden. If there were a government document about that, it may have been classified at the time. But we didn’t have any classified documents. All I recorded and left on those tapes is what he said.”
These historical facts presented by the White House raise the question: If it is illegal for presidents and vice presidents to take classified information with them when they leave office, why do they do it, and why has the government allowed it to continue? The White House suggests it’s because the presidency and vice presidency are “the most stressful and important jobs in the world — jobs that also require nearly continuous interaction with sensitive national security information.”
In addition, “presidents and vice presidents have long depended on the ability to take notes and the constitutional entitlement to the confidentiality of those notes. To intrude into the confidentiality of such notes by subjecting them to scrutiny in a criminal inquiry would inevitably chill presidents’ and vice presidents’ ability and willingness to write their notes freely, to the detriment of their Article II functions.”
The White House, therefore, hints at the answer to the age-old question but fails to answer it outright. Former presidents and vice presidents keep records, including classified information, after they leave office because they can. The Constitution vests the entire executive branch in the president. Because of this awesome authority, a president may possess and rely on any record that assists him in carrying out his duties. It also allows the president — and the president alone — to designate records as personal or presidential. Mr. Biden kept the “classified stuff downstairs” because he could.
Which leads us to special counsel Jack Smith’s prosecution of former President Donald Trump. If all those former presidents and vice presidents kept (and most likely keep) classified information in nonsecure locations after leaving office and were never prosecuted, why was Mr. Trump’s home searched, and why is Mr. Trump being prosecuted for what was found?
Wouldn’t such a prosecution interfere with future presidents’ Article 2 functions? The White House counsel’s letter is silent on that.
• Michael Bekesha is a senior attorney at Judicial Watch.
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