While “a foolish consistency” may indeed be the “hobgoblin of little minds” as Ralph Waldo Emerson asserted nearly 200 years ago in his 1841 essay Self-Reliance, a departure from apparent consistency by politicians and political commentators ought at least to be noted and explained. 

The appeal for “one rule” for Democrats and Republicans alike is actually an appeal for “the rule of law” generally. “No one is above the law” is the stock phrase intended to convey that one standard of justice ought to apply to conflicts, controversies, and especially legal disputes. This brings me to President Donald Trump’s documents, the ones seized in an FBI raid at Mar-a-Lago on Aug. 8, 2022. 

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Soon after that shocking intrusion into the then former president’s home in a search for allegedly classified documents, Trump told Fox News’s Sean Hannity that “There doesn’t have to be a process [to declassify] documents, as I understand it,” Trump told Hannity. “You know, different people say different things, but as I understand it, there doesn’t have to be.”

“If you’re the president of the United States, you can declassify just by saying, ‘It’s declassified.’ Even by thinking about it,” Trump continued. “There doesn’t have to be a process. There can be a process, but there doesn’t have to be. You’re the president, you make that decision … I declassified everything.”

The assertion of presidential power here is expansive, but as honest constitutional law experts, no matter their ideological leanings, have to admit, the question of the president’s authority to declassify has never been “asked and answered” by the Supreme Court. Indeed, the American Bar Association, a left-leaning trade group, concluded shortly after Trump’s comments that “As the new ABA Legal Fact Check notes, the extent of a president’s legal authority to unilaterally declassify materials — without following formal procedures — has yet to be challenged in court.”

My view is that a sitting president can declassify whatever he wants and indeed may simply do so without any formal process, as the Constitution does not require one. Article II makes the president commander in chief, and in that designation, there is a universe of power that Congress could not limit if it wanted to. In the same paragraph granting every president his commander in chief power, Article II, Section 2, Clause 1, is the commitment of the pardon power: “and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”

As with the commander in chief power, the pardon power is not limited on its face but is vested in the President, not his staff. 

This brings us to former President Joe Biden’s autopen pardons and commutations. There is now no dispute that Biden’s physical infirmities were accumulating in his last year in office, and most people agree that infirmity manifested itself long before his debate with Trump on June 27. 

The key sections of Jake Tapper and Alex Thompson’s book Original Sin: President Biden’s Decline, Its Cover-Up, and His Disastrous Choice to Run Again are a parade of anecdotes documenting how frequently Biden’s mental acuity was demonstrated in front of hundreds of people to be in decline. The question dodged by most, however, is whether the 25th Amendment ought to have been triggered given Biden’s manifest mental decline. I suspect that history will record a harsh answer to that question.

But what about Biden’s delegation of the pardon power to aides and the autopen? That this happened is not disputed. Even the former president admitted it in garbled and disconnected comments to the New York Times. Biden said that he had orally granted all the pardons and commutations issued at the end of his term, calling Trump and other Republicans “liars” for claiming his aides had used an autopen to do so without his authorization. “I made every decision,” Biden told the New York Times on Thursday, asserting that he had his staff use an autopen on the clemency warrants because “we’re talking about a whole lot of people.”

Skepticism about this narrative is, well, abundant. More hearings will be forthcoming. But the two claims of presidential power by Trump and Biden are very similar, though (1) Trump’s mental and physical energy appears robust while Biden’s decline is generally accepted as fact, and (2) Biden does not assert he made the pardon or commutation decisions with any particularity or articulated precise guidelines. 

The key here is that if anyone wants to defend the Biden sweep-of-a-hand pardon power, they will have a very difficult time distinguishing and then condemning Trump’s assertion of declassification authority. Not so the other way because Trump has always asserted he made the decision to declassify the documents at Mar-a-Lago, not that he delegated declassification authority to an autopen and had it carried out by aides using an autopen as Biden has confessed vis-à-vis his wheelbarrows of pardons.

The bottom line: If you are going to defend Biden’s pardons, welcome to the Trump team on the issue of declassification. The reckless raid of Mar-a-Lago began the lawfare that powered Trump into the campaign, and along with the various buffoonish prosecutions in New York, Atlanta, and D.C., provided jet fuel to Trump’s reelection campaign.

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One rule of law, remember?

And if you are of the opinion that the executive branch is a coequal and very powerful part of the federal government with the president at its head, humility about questions of the extent of his powers that the Supreme Court has not addressed perhaps should be met with answers that are both humbled by the lack of dispositive precedent, and by some measure of consistency or at least an explanation for the inconsistency.