As President Trump weighs whether to revoke the security clearances of six former U.S. officials, people familiar with the process said those impacted by such a move would have few legal options given the unchecked authority presidents have typically enjoyed on national security matters.
Senior U.S. officials who received Secret or Top Secret security clearances during their tenure are typically eligible to access classified information, or participate in sensitive briefings, after leaving their posts so they can serve in advisory roles to new administrations or to their successors, national security lawyer Bradley Moss told the Washington Examiner on Monday, hours after the White House announced it was open to rescinding a half-dozen security clearances belonging to Trump critics who previously served in government.
The White House said these past officials — former FBI Director James Comey and former FBI Deputy Director Andrew McCabe, former National Security Agency Director Michael Hayden, former CIA Director John Brennan, former Director of National Intelligence James Clapper, and former national security adviser Susan Rice — may deserve to have their clearances revoked because they are “monetizing” and “politicizing” their access.
“The president is exploring the mechanisms to remove security clearance because they politicize and in some cases monetize their public service and security clearances,” press secretary Sarah Sanders told reporters at Monday’s press briefing.
All six individuals have routinely criticized Trump for his posture toward Russia, with many of them amplifying their critiques in recent days following the president’s first one-on-one meeting with Russian leader Vladimir Putin, after which he questioned U.S. intelligence reports on the Kremlin’s interference in the 2016 presidential election.
“The president is extremely thin-skinned and he cannot stand political criticism from those who appear to look down on him,” Moss claimed, suggesting Trump views the threat of revoking their security clearances as “a tool … he can use to punish them without silencing them.”
A handful of the former officials identified by the White House on Monday were quick to accuse Trump of pursuing petty vengeance against them, even while noting he has the power to do it.
“I guess legally the president has that prerogative,” Clapper told CNN shortly after Sanders read his name aloud during the daily briefing. “If he chooses to do that for political reasons, I think that sets a very bad precedent … and it’s an abuse of the system.”
“Won’t have any effect on what I say or write,” Hayden said in a separate tweet, adding that he does not currently serve in an advisory role that would include partaking in classified briefings.
Melissa Schwartz, a spokeswoman for McCabe, said the former Number 2 at the FBI had his clearance “deactivated” when he was fired from the bureau earlier this year “according to what we were told was FBI policy.” Schwartz accused the White House of failing to perform its due diligence “before trying to throw shiny objects to the press corps.”
Comey, whom the president fired last May and whose name was included in a damning inspector general report last month about the FBI’s handling of the Hillary Clinton email probe, has also been without a security clearance for some time.
Trump is likely to face tremendous political backlash if he proceeds with revoking the security clearances of his most high-profile critics. His Democratic predecessor, Barack Obama, declined to take such action against former Director of National Intelligence Michael Flynn after he was fired from his post in 2014 for insubordination. The retired Army general later joined the Trump administration as national security adviser before he was terminated again last February.
But beyond the controversy such a move would cause, Moss and other said the president could face a situation where he is forced to flout set procedures and use his own executive authority to pull the trigger.
A decades-old executive order signed by former President Bill Clinton dictates the order in which a person’s security clearance should be reviewed by the appropriate agency to determine whether they no longer “meet the standards for access to classified information,” according to a copy of the order. Under this process, anyone whose clearance is under review or has been revoked is provided with “an opportunity to appeal in writing to a high level panel, appointed by the [relevant] agency head.”
“If Trump just wants to run these guys through that process, including the appeal procedures that are afforded to them, then that’s fine,” Moss said. “It’s purely administrative, and the government holds all the cards.”
He continued, “My concern is that if he puts them through the process, that means someone else in government is going to have to sign off on this claim and while the president might be offended that Hayden, Clapper, Comey, etc. are writing books and going on TV, agency heads don’t care.”
“I don’t anticipate any of them would be willing to sign off on it, and it would set off a constitutional clash over the president’s inherent authority versus the Fifth Amendment due process rights of these individuals,” Moss argued.
It’s unclear how the courts would rule on such a case, but legal experts in the national security arena have previously said it is notoriously difficult to successfully challenge the revocation of a security clearance in court.
According to the Maryland-based law firm Henault & Sysko, which specializes in national security law, “the U.S. Supreme Court and lower federal courts have long held the judiciary has no inherent authority to ‘review security-clearance determinations’ which are ultimately a discretionary function exercised by the president of the United States and other executive branch officials.”
Moss said there are plenty of relevant cases “on the periphery,” but because none of Trump’s predecessors have personally revoked a security clearance belonging to one of their own aides or a former official, there is virtually no basis on which to litigate such a question.
The Office of the White House Counsel, which is Trump’s primary source of internal guidance from a legal perspective, declined to respond to a request for comment.
According to national security lawyer Mark Zaid, the 1988 Supreme Court case Department of Navy v. Egan established that federal courts “do not have jurisdiction over substantive security clearance determinations,” but can rule on cases involving the violation of administrative procedures.
“Anybody could obviously sue if the president pursues this, but the Egan case forecloses even constitutional challenges to substantive determinations,” Zaid told the Washington Examiner.
Zaid and Moss both argued, however, that even if the president can strip his critics of their ability to access classified information that doesn’t mean he should. Doing so would be antithetical to First Amendment values and could significantly harm morale throughout the executive branch, they said.
“If word got out that Johnny was at the water cooler bad-mouthing the president of the United States or the director of his agency, should that person’s security clearance be revoked or removed?” Zaid said, adding that “if that’s the precedent that’s set, that’s going to be a real easy way to clean house.”
