It is rare for a university to find itself at the center of a national political scandal but the University of Delaware is being pummeled over its refusal to release possible documents related to allegation of sexual assault against former Vice President Joe Biden. Biden, who graduated from the school and served as Delaware’s senator, gave his paper from the Senate to the university in 2011. Among the papers may be the formal complaint filed by former Biden Senate staffer, Tara Reade. However, the university is refusing to release the papers. Papers like the Washington Post have called on Biden to release all of the personnel papers. Years ago, I wrote an academic paper criticizing this control of presidential and official papers – contesting the view of politicians that these papers are personal property. I also testified in Congress against this classification of official papers as personal property. As discussed in earlier columns, this is an example of how abusive this approach can be.
Biden’s 2011 donation of his Senate records is a common gesture of former politicians to their alma maters. That donation encompassed at least 1,875 boxes of documents and 415 gigabytes of electronic records that Biden donated to the University of Delaware in 2011.
The Washington Post reported that the University made a critical change in the expected release date of the document just before Biden announced his run for president.
Starting in 2011 and for years after, the university had described the terms of the agreement as keeping the papers sealed “for two years after Biden retires from public office.” But this year, on the day before Biden announced his presidential campaign, the university changed the way that it described those terms.
Instead of citing his departure from “public office,” the university said the documents would not be made public until two years after Biden “retires from public life” or after Dec. 31, 2019, whichever is later. It did not define what is considered “public life.”
This has been a long-standing issue. In 2002, I addressed the issue in terms of presidential record: United States House of Representatives, Committee on Government Reform, Subcommittee on Government Management, Information, and Technology, “H.R. 4187: The Presidential Records Act Amendments of 2002,” April 24, 2002. I also wrote a law review article on this subject: Presidential Records and Popular Government: The Convergence of Constitutional and Property Theory in Claims of Control and Ownership of Presidential Records 88 Cornell Law Review 651-732 (2003).
There is no reason why presidents and senators should treat official documents filed in their offices as their personal property. The Presidential Records Act, for example, allows a president to not only conceal material but appoint his own loyalists to make critical decisions on whether and when material can be reviewed. Presidents can unilaterally declare matter as privilege and nonpublic to protect themselves from embarrassment and the judgment of history.
This is wrong. Those personnel records from Biden’s public service are public records, not his. By giving the papers to the University of Delaware, Biden selected a university with a Board packed with Biden loyalists. However, in fairness to Biden, he is doing what politicians have been doing for decades under rules that they designed precisely for this purpose. It is time to end this absurd privatization of public records for presidents and members of Congress alike.
For Biden, the solution is simple and obvious: release his records so the public can fully judge the merits for itself.
Delaware’s motto is Scientia Sol Mentis Est or Knowledge is the light of the mind. This is using an academic gift to shield a politicians and ensure darkness in an area demanding light.