The long-awaited response by former Vice President Joe Biden to the allegation of sexual assault by former staff member Tara Reade occurred this morning on MSNBC Morning Joe.  Biden likely viewed this as a most favorable possible forum but host Mika Brzezinski did an excellent job in questioning Biden who, shortly before the interview, publicly called for the release of any complaint by Reade.  Biden’s release was artificially narrow and, while he started strong, he quickly disassembled under questioning as to why he would not allow the release of material from the University of Delaware, which we discussed yesterday.  The refusal drew objections from advocates for victims of sexual assault. Biden also had missteps like calling the allegation “irrelevant.” The one thing that I will again raise is that this controversy should spark a debate over the privatization or control over what should be public documents by politicians.

Let’s unpack this by starting with the correct answer. Biden should have simply declared that he will request the release of any material anywhere that concerns allegations by anyone of sexual misconduct by him.  Period.  That level of transparency would put him in sharp contrast with President Donald Trump.  I have been critical of Trump for years due to his failure to release such material including his taxes. I was also critical of Hillary Clinton in refusing to release Wall Street speeches.  She used Trump’s position to justify her own refusal.  It served her purposes to avoid disclosure of her past comments to Wall Street but it destroyed any high ground in criticizing Trump.

When Biden announced that he would be releasing material, I was hopeful.  Then the clearly abridged language and narrow release became apparent. In fairness his full statement is below. However, this is the key language:

“There is only one place a complaint of this kind could be – the National Archives. The National Archives is where the records are kept at what was then called the Office of Fair Employment Practices. I am requesting that the Secretary of the Senate ask the Archives to identify any record of the complaint she alleges she filed and make available to the press any such document. If there was ever any such complaint, the record will be there.”

There is less than meets the eye in this waiver.  First, the National Archives is not the only place that relevant information would be housed.  The University of Delaware has cut off access to Biden’s official papers which clearly could contain such information.

Second, the Biden waiver only asks for the release of a Reade “complaint” and not any material related to that or other allegations of sexual misconduct.  Why?  All of this is “relevant” and Biden’s action reflected his acknowledgment that there should be public access.  Biden agreed that any complaints could be released but he refused to go further.

Mika correctly pressed on the obvious disconnect and asked why he would not release material on this or other allegations at Delaware.  Biden gave a clearly evasive argument that such material may be used as a “fodder” in the campaign because he addressed his relations with other leaders. Mika pointed out that sexual misconduct material would not present such problems.  Biden however steadfastly refused and became more defiant.  I really do not get the political calculation here.  If you want to be transparent, be transparent. Biden could have carried the day with a total pledge for access for any and all claims found in any archive or library. Instead, the benefit of his waiver was quickly lost by his defiance.

It was the type of moment that lawyers long for in a trial as a well-prepared witness suddenly is thrown off by a probing question.  Both lawyers and police are suspicious when a suspect is highly effusive but artificially narrow in such statements.  It is like a suspect encouraging police to search his farm but becoming irate when asked if they could search his house.  What we need is sunlight not a flashlight point only to a confined area of search.

I am not sure why Biden disassembled.  I found him strong at the outset and commendable in his initial release.  I also do not accept the allegation of rape against him without further proof.  Indeed, the weight of the evidence is clearly favoring Biden given the denial of some many of his staff members of any knowledge of the complaint. However, his dogmatic refusal to open up the Delaware records needs to be addressed quickly.

Finally, as I stated earlier, there is an important issue in all of this controversy that should be addressed about who should control such material. 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 privileged 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.

Here is Biden’s statement:

“April was Sexual Assault Awareness Month. Every year, at this time, we talk about awareness, prevention, and the importance of women feeling they can step forward, say something, and be heard. That belief – that women should be heard – was the underpinning of a law I wrote over 25 years ago. To this day, I am most proud of the Violence Against Women Act. So, each April we are reminded not only of how far we have come in dealing with sexual assault in this country – but how far we still have to go.

When I wrote the bill, few wanted to talk about the issue. It was considered a private matter, a personal matter, a family matter. I didn’t see it that way. To me, freedom from fear, harm, and violence for women was a legal right, a civil right, and a human right. And I knew we had to change not only the law, but the culture.

So, we held hours of hearings and heard from the most incredibly brave women – and we opened the eyes of the Senate and the nation – and passed the law.

In the years that followed, I fought to continually strengthen the law. So, when we took office and President Obama asked me what I wanted, I told him I wanted oversight of the critical appointments in the Office on Violence Against Women at the Department of Justice and I wanted a senior White House Advisor appointing directly to me on the issue. Both of those things happened.

As Vice President, we started the “It’s on Us” campaign on college campuses to send the message loud and clear that dating violence is violence – and against the law.

We had to get men involved. They had to be part of the solution. That’s why I made a point of telling young men this was their problem too – they couldn’t turn a blind eye to what was happening around them – they had a responsibility to speak out. Silence is complicity.

In the 26 years since the law passed, the culture and perceptions have changed but we’re not done yet.

It’s on us, and it’s on me as someone who wants to lead this country. I recognize my responsibility to be a voice, an advocate, and a leader for the change in culture that has begun but is nowhere near finished. So I want to address allegations by a former staffer that I engaged in misconduct 27 years ago.

They aren’t true. This never happened.

While the details of these allegations of sexual harassment and sexual assault are complicated, two things are not complicated. One is that women deserve to be treated with dignity and respect, and when they step forward they should be heard, not silenced. The second is that their stories should be subject to appropriate inquiry and scrutiny.

Responsible news organizations should examine and evaluate the full and growing record of inconsistencies in her story, which has changed repeatedly in both small and big ways.

But this much bears emphasizing.

She has said she raised some of these issues with her supervisor and senior staffers from my office at the time. They – both men and a woman – have said, unequivocally, that she never came to them and complained or raised issues. News organizations that have talked with literally dozens of former staffers have not found one – not one – who corroborated her allegations in any way. Indeed, many of them spoke to the culture of an office that would not have tolerated harassment in any way – as indeed I would not have.

There is a clear, critical part of this story that can be verified. The former staffer has said she filed a complaint back in 1993. But she does not have a record of this alleged complaint. The papers from my Senate years that I donated to the University of Delaware do not contain personnel files. It is the practice of Senators to establish a library of personal papers that document their public record: speeches, policy proposals, positions taken, and the writing of bills.

There is only one place a complaint of this kind could be – the National Archives. The National Archives is where the records are kept at what was then called the Office of Fair Employment Practices. I am requesting that the Secretary of the Senate ask the Archives to identify any record of the complaint she alleges she filed and make available to the press any such document. If there was ever any such complaint, the record will be there.

As a Presidential candidate, I’m accountable to the American people. We have lived long enough with a President who doesn’t think he is accountable to anyone, and takes responsibility for nothing. That’s not me. I believe being accountable means having the difficult conversations, even when they are uncomfortable. People need to hear the truth.

I have spent my career learning from women the ways in which we as individuals and as policy makers need to step up to make their hard jobs easier, with equal pay, equal opportunity, and workplaces and homes free from violence and harassment. I know how critical women’s health issues and basic women’s rights are. That has been a constant through my career, and as President, that work will continue. And I will continue to learn from women, to listen to women, to support women, and yes, to make sure women’s voices are heard.

We have a lot of work to do. From confronting online harassment, abuse, and stalking, to ending the rape kit backlog, to addressing the deadly combination of guns and domestic violence.

We need to protect and empower the most marginalized communities, including immigrant and indigenous women, trans women, and women of color.

We need to make putting an end to gender-based violence in both the United States and around the world a top priority.

I started my work over 25 years ago with the passage of the Violence Against Women Act. As president, I’m committed to finishing the job.”