So the chattering classes in Washington are buzzing over the fact that senior White House adviser and presidential son-in-law Jared Kushner does not have a fully adjudicated security clearance after a year on the job. Setting aside the obvious for a moment — that Kushner has never held a clearance before and that commercial real estate transactions and business relationships take a long time to sort through — there is another reason why Kushner’s clack of clearance is, truly, no big deal.
It has to do with who is and who is not subject to the normal investigation and adjudication procedures to which you and I, as cleared government employees, military members, and contractors, are subject.
White House Office Exemption
The White House Office, that part of the Executive Office of the President that works most closely with the president, is a special animal among government organizations, and always has been. Let’s start with the one thing that every cleared professional knows: unlike what the media is reporting, the FBI does not investigate every candidate for a clearance; that is the job the Office of Personnel Management.
But for the roughly 450 employees of the White House Office, the FBI does the legwork. The Code of Federal Regulations (5 CFR 1312.23) establishes that the EOP Security Officer is responsible for approving security clearances for EOP employees including those in the WHO. But there’s a catch.
The requirement for WHO employees to have a valid clearance is (sort of) established in a 1994 statute (P.L. 103-329, Sec.632) that says any WHO employee who doesn’t submit an SF-86 within 30 days will be placed on leave without pay. It further states that the White House counsel must forward completed investigations to the Secret Service within six months.
But not only is the law silent on what happens when an investigation is not completed within six months (as is apparently the case with Kushner) it contains a specific exception for those employees exempted by the president.
Executive Order 13467
Most of the rules for who gets to have access to classified information isn’t actually law, they’re determined by the president. A series of executive orders dating to a 1953 order signed by President Dwight Eisenhower. The current version, E.O. 13467, was published by President George W. Bush in 2008, and amended by President Barack Obama in the closing days of his administration.
This order contains the most important piece of overlooked information in the who bruhaha around this issue. In defining a “covered person” (in other words, the people to whom the order pertains), it specifically exempts “the President or (except to the extent otherwise directed by the President) employees of the President under section 105 or 107 of title 3, United States Code.” Section 105 establishes the White House Office.
This rule is to ensure the the president gets to have anyone advising him that the wants, without any other organization telling him they’re “not suitable.” All these arguments about whether Jared Kushner is suitable for access to classified information or not are, as far as I can see, moot.
I say “as far as I can see,” because no one is talking about the aspect of presidential authority and policy in this matter. Several months ago, when Kushner’s clearances was last an issue, I reached out to the public affairs office in the Office of Personnel Management to double check this interpretation. When they learned that I wanted to use their answers to analyze Kushner’s case, they stopped talking and referred me to the White House.
And while I appreciate everyone who reads Daily Intel regularly, I don’t have the kind of pull it takes to get a question answered by the White House press office.
This information will not stop people like Rep. Ted Lieu (D-Calif.), an Air Force Reserve Colonel, from using security clearances as a club to beat the Trump administration with. I’m curious why this is the one issue that the president has not spoken out about. It’s sure to be an interesting explanation.