Members of Congress have taken a sharp tone towards the possible mishandling of classified documents by President Biden, former President Trump and former Vice President Pence in recent weeks, and many have called for legislative action to prevent such occurrences from happening again.
It’s unclear, however, what action Congress could take, considering the level of classification of documents has been managed by the executive branch of the U.S. government since the time of the late President Franklin Roosevelt, and no members speaking out on the issue have provided any specifics as to what can actually be done to address the problem.
“Holding classified documents in anything other than a very secure setting is a risk to national security that is very serious and needs to be resolved. And there are a number of elements to that,” Sen. Mitt Romney, R-Utah, said last month after reports surfaced that Pence was the latest to be in possession of classified documents, and just weeks after some had been found at Biden’s home and former office.
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“One of course is, do we classify too many things? Number two is, do we not have a process for monitoring where these things are and getting them returned? So, there needs to be some work done to resolve what is obviously a very serious matter,” he added.
Sen. Kevin Cramer, R-N.D., took a similar approach, saying Congress needed to address the “over-classification” of documents.
“As I’ve said before, no president, vice president or member of Congress should walk out of the White House with classified documents,” he said after the Pence and Biden document revelations. “We need to handle these situations in a clear, consistent manner moving forward so it would make it nearly impossible for anyone to leave a classified area with classified documents.”
“We must also deal with the over-classification of documents. The American system is so exceptional because of its openness and self-governance, we likely owe the public a few more facts to ensure adequate transparency. However, some things are classified for a reason, and we need to determine how to best keep them that way,” he added.
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According to a 2017 report by the Congressional Research Service, Congress’ ability to regulate, or have any say at all, in the classification process could be limited due to precedent for the process residing fully within the bounds of executive constitutional authority.
Prior to 1940, the U.S. military regulation determined the classification of documents. That year, Roosevelt issued an executive order “authorizing government officials to protect information pertaining to military and naval installations.” This led to subsequent U.S. presidents continuing to set federal government classification standards by executive order, citing “general statutory and constitutional authority.”
The report stated that the Supreme Court has never directly addressed to what extent Congress can actually constrain the executive branch’s power when it comes to classified documents, but that it has stated in previous cases that the executive’s role pertaining to classified documents flows from the Constitution rather than a grant from Congress.
According to the report, some have interpreted that to mean the president has absolute authority to control classified information.
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It added that the court has, however, suggested “Congress could certainly [provide] that the Executive Branch adopt new [classification procedures] or [establish] its own procedures—subject only to whatever limitations the Executive Privilege may be held to impose on such congressional ordering.”
It also noted that Congress has previously directed the executive branch to “to establish procedures governing the access to classified material,” as well as “to adhere to certain minimum standards of due process with regard to access to classified information.”
Fox News Digital reached out to multiple members of Congress who had suggested Congress take action on the alleged executive branch’s mishandling of classified documents, but none would provide any specifics on what they felt Congress could specifically do to prevent future occurrences.