Jarrett was asked during an interview on Fox News about who should feel “worse about their legal fate” in handling classified records.
“I think President Biden is more at criminal risk here because Trump had the ability to declassify documents…he can do it on his own. He doesn’t have to tell anybody,” Jarrett said.
Trump is being investigated by the Department of Justice (DOJ) for keeping hundreds of highly classified documents at his Mar-a-Lago estate. The documents, which reportedly included classified materials about nuclear weapons, were retrieved by FBI agents in August after the approval of Attorney General Merrick Garland.
The former president has repeatedly denied any wrongdoing and claimed that he declassified the documents before moving them from the White House to his house.
Former DOJ official Mary McCord said at the time of the Mar-a-Lago raid that she didn’t find a “plausible argument that he had made a conscious decision about each one of these to declassify them before he left,” and added that Trump had no authority to declassify information after leaving office.
Jarrett on Friday said that Biden doesn’t have declassification authority to store the documents at his house.
“Joe Biden, when he was vice president and departed office, obviously took classified documents with him,” Jarrett said. “He doesn’t have declassification authority. You’ll notice he’s not claiming, ‘Oh, you know, I declassified these documents.’ It’s a crime to remove and store classified documents and put them in an unauthorized location.”
The classified documents found in a locked garage at his private residence in Wilmington, Delaware, dated to when he was vice president in the Obama administration.
“I’m gonna get a chance to speak on all of this, God willing, soon….By the way my Corvette’s in a locked garage, OK?” he said Thursday. “So, it’s not like they’re sitting in the street. But as I said earlier this week, people know I take classified documents and classified materials seriously.”
Still, Jarrett criticized the president on Friday, saying, “I’m sorry, but the Corvette defense doesn’t cut it. You know, it has to be in what’s known as a SCIF, as you know, a secure location approved by the government for classified docs.”
An earlier batch of confidential records was found on November 2 by Biden’s attorneys in his former office at the Penn Biden Center for Diplomacy and Global Engagement think tank in Washington, D.C.
The records initially discovered contained 10 classified documents, including materials related to U.S. intelligence and memos about Ukraine, Iran and the United Kingdom, CNN reported.
Do Presidents Have Authority to Declassify Sensitive Materials?
Article II of the Constitution to safeguard national security information stipulates that a president can classify and declassify documents in most cases, according to the Brennan Center for Justice.
This authority has also been reflected in the majority ruling in the 1988 U.S. Supreme Court case Department of Navy v. Egan, which involved a Navy employee who had been denied a security clearance.
“The President, after all, is the ‘Commander in Chief of the Army and Navy of the United States’” according to Article II of the Constitution, the court’s majority wrote. “His authority to classify and control access to information bearing on national security…flows primarily from this constitutional investment of power in the President, and exists quite apart from any explicit congressional grant.”
Steven Aftergood, director of the Federation of American Scientists Project on Government Secrecy, said that such authority allows the president to “classify and declassify at will.”
However, there are some cases in which a president doesn’t have that authority, according to the Brennan Center for Justice. For example, Congress has specified that only the Department of Energy may declassify certain nuclear information, so the president in that case wouldn’t have the authority to do so.
In the case of Trump’s handling of Mar-a-Lago documents, some of the material had Formerly Restricted Data classification markings on them. That means it can contain nuclear weapon information, according to the Brennan Center for Justice, and therefore such records can be declassified only by the Department of Energy and Department of Defense.
Congress has great authority when it comes to matters related to national security and shares the power with the president. Members of Congress may legislate rules that restrict the president’s classification authority.
Newsweek reached out to the White House and Trump’s media office for comment.
