Can Joe Biden Be Removed Under Classified Documents Law?

The steadily building classified documents controversy surrounding President Joe Biden has led to probing questions of White House security, with a special counsel investigation underway to answer how yet another set of secret papers left Washington D.C.

At least three batches of classified documents have been found at Biden's residence in Delaware in the past week, following recent reports emerging that such documents were found prior to the midterms at a private D.C. office he used before being elected in 2020.

Also under investigation by the Department of Justice simultaneously is President Donald Trump's possession of classified documents at his Mar-a-Lago resort in Florida, a probe which some legal experts have previously told Newsweek could bar him from running for office in 2024.

Some observers of Biden's classified documents problem are looking at what also may be the consequences for the current president.

One such claim appeared on Facebook, on January 16, 2022, by conservative commentator and activist Benny Johnson, in which Johnson referred to a tweet that highlighted "18 U.S. Code § 2071 - Concealment, removal or mutilation generally."

Johnson said the tweet shows that "Joe Biden might be removed from office" for holding classified information. "Check this out, U.S. Code 2071, concealment, removal or mutilation of government property," Johnson said.

"'Whoever having the custody of such record'—that being a classified record—'proceeding, map, book, document, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys'—Joe Biden unlawfully concealed and removed those documents—'they'll be fined, they'll be put in prison for three years and they will forfeit their office and be disqualified from holding any other office."

Later in the video (which has been viewed more than 48,000 times, with more than 6,300 engagements) Johnson added "Joe Biden should probably serve out the rest of his term in a prison cell."

Could Biden leave the White House for a U.S. Code violation?

This section of the U.S. Code was quoted in the FBI search warrant of Donald Trump's Mar-a-Lago residence, giving authorities the right to seize "all physical documents and records constituting evidence, contraband, fruits of crime, or other items" that were illegally possessed in violation of 18 U.S.C § 2071, among other codes.

Media outlets including Newsweek heard from legal experts that the former president could face charges under this Code which, if violated, could prohibit him from running for office.

Trial lawyer and former federal prosecutor Neama Rahmani told Newsweek: "His lawyers told him about the law requiring that he preserve White House documents, so he was on notice and that will bolster the case and help prove intent if prosecutors charge Trump."

Biden, unlike Trump, has not faced allegations that he destroyed documents, although 18 U.S.C § 2071 concerns both the wilful and unlawful concealment and/or destruction of documents.

An allegation that Trump periodically destroyed documents while in office appeared in a book by New York Times journalist Maggie Haberman that Trump periodically destroyed documents when in office.

Newsweek's Fact Check team found that if Trump was convicted of destroying documents, he could become ineligible to run for president again.

In the case of Biden, however, the matter is a little more complex. From the outset, the wording of the Code requires evidence that his actions were wilful and unlawful.

In a statement on Thursday, Biden said "people know I take classified documents and classified materials seriously." Biden's lawyers said they returned the first set of documents to the National Archives promptly after discovery.

Legal experts questioned the likelihood of the president facing action under the U.S. Code quoted by Benny Johnson.

Professor Michael T. Morley, Sheila M. McDevitt Professor at Florida State University's College of Law, said there is uncertainty as to whether the President of the United States qualified as "an office under the United States" which would make him accountable to Code 2071.

"A court could reasonably conclude that interpreting 18 USC 2071's forfeiture and disqualification provisions to apply to a sitting President would raise serious constitutional questions," Morley told Newsweek.

"Under the constitutional avoidance canon of statutory construction, it would likely hold that, without specific language expressly mentioning the President, the statute—or at least its forfeiture and disqualification provisions—are inapplicable to him."

Other instruments which may protect the president are the constitutional articles of impeachment, stating that the House of Representatives has the "sole power of impeachment" while the Senate has "the sole power to try all impeachments".

"Likewise, even if a President were convicted in court of violating Section 2071, a court is very unlikely to unilaterally order a sitting President to vacate his office," Morley added.

"Rather, under the political question doctrine, the court is likely to conclude that the Senate is the only body capable of removing a sitting President. Thus, a judicial conviction for violating a federal statute is neither a necessary nor sufficient condition for removal of a sitting President.

So, the wording and terms of Code 2071, coupled with the constitutional powers of Congress do appear to, at the very least, suggest that the president could not be removed solely under the statute quoted by Benny Johnson.

What is the prospect of a successful conviction?

As Morley explained, U.S. Code 2071 has "strict mens rea requirements" meaning that a person can't be convicted for violating the statute "accidentally or even negligently", applying only if a person "willfully" removes certain documents.

"This is a high standard of proof that would require evidence of the President's knowledge and intent beyond the facts that have been made publicly available so far," Morley said.

"In short, there will not be a prosecution, any such prosecution would be unlikely to succeed without substantially more mens rea evidence, there are serious questions as to whether 18 U.S.C. 2071's forfeiture and disqualification provisions apply to a sitting President, and in any event the Senate has the sole power to remove a President from office."

As stated by Kimberly L. Wehle, Professor of Law at the University of Baltimore, in a 2021 paper examining the indictment of presidents, federal prosecutors are also told not to indict sitting presidents, even though it isn't legislated.

Examining Special Counsel Robert Mueller's Russia investigation, Wehle wrote that "under the governing regulatory framework for a special counsel, Mueller was bound by DOJ policy."

"So even if Mueller were to find indictable evidence that he believed would convince a jury beyond a reasonable doubt that Donald J. Trump committed one or more federal crimes either before taking office or while in office, federal prosecutors were barred from bringing such a case," she wrote.

So, while investigations into U.S. Code violations may be forthcoming, these violations alone do not appear sufficient to remove Biden from office; impeachment is the only likely route out.

Based on practice, application, and the burden of proof required in any case, it looks like Biden won't lose the White House over this one U.S. Code, even if it is theoretically possible.

Newsweek has contacted the White House and Benny Johnson for comment.