Yesterday President Trump made good on his threat to revoke the security clearance of ex-CIA Director John Brennan. Since leaving his position with the CIA, Brennan has worked as an intelligence analyst for MSNBC and NBC News – and been an extremely outspoken critic of the president. Critics claim the move is a misuse of presidential power against a political opponent. It’s also unclear how much Brennan was benefiting from his continued clearance eligibility. Regardless, revoking security clearances is within the president’s power – and really, Brennan could see this coming. Any clearance holder accusing the president of treason on national television is bringing the heat on himself – and a move by a former government official that is certainly without precedent.
Also crowding the spotlight (as ever) is former reality TV star turned White House aide Omarosa Manigault-Newman. Over the last several days, she has accused the president of using racial epithets, insulting cabinet members behind their backs, and numerous other unconfirmable wrongdoings. But most importantly, she released recordings of private conversations in the White House – including her firing by John Kelly in the Situation Room (a SCIF). And though she was fired last December, the recordings surfaced now, just as she’s doing the publicity for a new book release. Shocker.
These examples beg the question of whether public servants can (or should) profit from their service. Legal consequences generally depend on the type of position held, in what agency or branch, and whether the person possessed a security clearance.
Security Holders Carry the Responsibility of the Public’s Trust
First, let’s address the responsibilities for security clearance holders, as their level of obligation is a bit clearer. As Sean Bigley, national security attorney and founding partner of Bigley Ranish explains, “Access to classified information establishes a fiduciary relationship between the security clearance holder and the government. That relationship survives a later administrative termination of access or even a revocation of clearance for cause. In other words, just because access to classified information no longer exists does not mean that the (now former) clearance holder is off the hook for protecting the information learned while in access. The obligation to protect classified information lasts a lifetime or until the information is declassified – whichever is shorter.”
Violating that trust by revealing or mishandling classified information will expose the former employee to prosecution under 18 U.S.C. § 93. (1924), which reads:
“(a) Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than five years, or both.
(b) For purposes of this section, the provision of documents and materials to the Congress shall not constitute an offense under subsection (a).
(c) In this section, the term “classified information of the United States” means information originated, owned, or possessed by the United States Government concerning the national defense or foreign relations of the United States that has been determined pursuant to law or Executive order to require protection against unauthorized disclosure in the interests of national security.”
Though John Brennan’s work since the CIA has been inflammatory, there is no evidence that he stole, disclosed, or mishandled classified information. And though, in theory, his access to information should have ended with his employment, a man of such a high position still likely has many friends who still hold their positions. By revoking his security clearance Trump is sending a loud and clear message to anyone who continues to discuss classified information with Brennan. They’re opening themselves up to investigation and possible conviction.
Didn’t Have a Clearance? You’re Still Bound by the Law.
It’s unclear if Manigault-Newman held a clearance, though it appears she did not. Even if that’s the case, she’s not off the hook. As ClearanceJobs reported yesterday, there has been much discussion of Manigault-Newman’s White House non-disclosure agreement. The details and legal status of these White House NDAs is a little untested, but violating it could get her in hot water – especially with the publishing of her new book.
As Bigley points out, “There are other rules that govern the behavior of former public servants, mostly with regard to lobbying a former federal agency employer or representing clients with interests adverse to the government.” According to the Office of Government Ethics, employees of the executive branch may be subject to conflict of interest restrictions. And depending on whether they spoke to former co-workers about official matters on behalf of their new employers, Brennan and Manigault-Newman both could find themselves in hot water.
Many of these same restrictions apply to military personnel, as well. If you are currently serving or are recently discharged, this is an excellent quick resource from the Department of Defense’s Standards Conduct Office.
Stay on the Safe Side and Talk to an Ethics Official
“Because the rules can be complicated and the penalties severe,” says Bigley, “the best advice I can give is to always consult with U.S. government ethics officials – either the Office of Government Ethics or agency ethics personnel – prior to taking questionable action. Individuals should be sure to get guidance in writing and fully articulate the proposed course of action to ensure a robust legal analysis. Ethics and conflict-of-interest situations do not lend themselves to a ‘beg for forgiveness’ approach.”
For former civil servants like Brennan and Manigault-Newman, only time and further investigation will tell if they’ve broken the law. But it’s worth pointing out that “legal” and “ethical” are not synonyms. Using a former position of trust as a vehicle for advancing your own wealth and fame may well be legal, but it’s sure not right. America’s honor is upheld when we require our public servants not just to do the legal thing, but to do the right thing.
