President Donald Trump doubled-down on his revocation of John Brennan’s security clearance Monday, daring the former CIA Director to sue. Since February, Brennan has worked as an analyst for NBC News and its cable outlet MSNBC. On Friday, Brennan appeared on the Rachel Maddow Show in his first press appearance since the revocation.
Maddow brought up the fact that Rep. Elijah Cummings (D-Md.), the ranking member on the House Oversight and Government Reform Committee, had suggested that Trump’s handling of Brennan’s case might be illegal, and requested a detailed accounting of the process and procedure leading up to the revocation. Cummings’s letter accused the president of circumventing the steps detailed in Executive Order 12968, which guides the process for granting and revoking security clearances.
Brennan said he was thinking of going to court over the revocation. “As you can imagine, a number of lawyers have reached out to say there is a very strong case here, not so much to reclaim mine but to prevent this from happening in the future,” he told Maddow. “And so, I am thinking about what it is that I might want to do.”
No Controlling Legal Authority of the clearance process?
In 1997, after being accused of soliciting campaign contributions from the White House (a campaign finance no-no), Vice President Al Gore defended his actions by saying there was “no controlling legal authority.” This was a specious argument in Gore’s case, but in the Trump-Brennan matter, it actually appears to be the case.
Regular ClearanceJobs visitors will know that while there are laws specifying penalties for unauthorized disclosure of classified information, there are not laws to specify what information is classified and how individuals obtain – or, like Brennan, lose – security clearances. The rules are laid out in a series of executive orders, which the president alone decrees, and which he can revoke with the wave of his hand at any time.
Congress has had ample opportunity to change this arrangement by passing a law to formalize the security clearance process. But it has been 65 years since President Dwight Eisenhower issued the first executive order on security clearances. In all that time, Congress has not seen the necessity to act in this regard. In the absence of a law restricting or regulating how the government grants security clearances, the president’s powers as commander-in-chief are absolute.
This is part of the reason why Trump tweeted Monday morning that he hopes Brennan does take his case to court. The president said he wants the opportunity to “get all of his records, texts, emails and documents.” But the president, as his aides have doubtless told him, already has the power to read all those documents, provided they were created on a government computer. (This, of course, highlights the main problem with former Secretary of State Hillary Clinton’s use of a private email server…but let’s not go there right now).
Can the president short-circuit the Security clearance process?
Rep. Cummings argues that the president did not follow the procedures in EO 12968, which provide for notice, legal representation, and appeal.
Set aside for the moment the fact that Trump’s decree did not itself revoke Brennan’s clearance. The closing to Trump’s statement read, “It is for the foregoing reasons that I have exercised my Constitutional authority to deny Mr. Brennan access to classified information, and I will direct appropriate staff of the National Security Council to make the necessary arrangements with the appropriate agencies to implement this determination.” [emphasis added]. That directive alone – to have the appropriate agencies follow the proper procedures – renders Cummings’s objections moot. But there is more in the EO that points to the president’s power.
Section 5.2, in paragraph (d), gives an agency head (and thus, one would presume, the president himself, since he is the boss of all the agency heads) the ability to bypass the normal procedures when following them would harm “the national security interests of the United States by revealing classified information.” Paragraph (e) further empowers an agency head to take decisive action. “The power and responsibility to deny or terminate access to classified information pursuant to any law or other Executive order may be exercised only where the agency head determines that the procedures prescribed in subsection (a) of this section cannot be invoked in a manner that is consistent with national security. This determination shall be conclusive.”
Trump has court precedent on his side
“This determination shall be conclusive.” The courts have agreed with this determination.
The 1988 decision in Department of the Navy v. Egan established that when it comes to security clearances, the president has the “authority to classify and control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position in the Executive Branch that will give that person access to such information…”
This authority, the court held “flows primarily from this constitutional investment of power in the President and exists quite apart from any explicit congressional grant.” Absent a statute to the contrary, the Merit Systems Protection Board was powerless to review the reasons for Egan’s security clearance revocation, which led to his dismissal from the federal workforce.
In addressing the president’s decision, Brennan said “I think Mr. Trump has demonstrated time and time again that he believes that just because he has the authority to do these things, that he has, in fact, the right to do it irrespective of what is truly the appropriate thing to do.”
That may be so as a matter of professional courtesy. But as a strictly legal matter, the president’s authority is all he needs. Just as the dust-up over the so-called “Muslim ban” ended with the Supreme Court upholding the president’s authority under law to deny entry to a specific group of foreign nationals, I’m confident it would uphold the president’s ability to act unilaterally when it comes issuing and revoking security clearances.
That doesn’t make it a good idea. But it does make it legal.