Published by The Lawfare Institute
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White House Press Secretary Sarah Huckabee Sanders’s announcement that President Trump is reviewing potential mechanisms by which to revoke the security clearances of several former senior government officials has—not surprisingly—set off a cascade of questions over if and how the president can accomplish this. The prospect became even more complicated when Sanders clarified that the president’s specific gripes with these particular former officials—former director of national intelligence James Clapper, former CIA director John Brennan, former FBI director James Comey, former CIA director Michael Hayden, former national security adviser Susan Rice and former deputy FBI director Andrew McCabe—was not tied to instances of security violations or unauthorized dissemination of classified information by those individuals.
Instead, Sanders clarified, Trump is considering steps by which their clearances can be revoked because “they’ve politicized and, in some cases, monetized their public service and security clearances,” as well as “ma[de] baseless accusations of improper contact with Russia or being influenced by Russia against the President.” In 11 years of representing civilian employees, military personnel, political appointees and government contractors in security clearance proceedings, I can say with certainty that these types of “allegations” are nothing like anything I have ever seen in a memorandum outlining bases for denying or revoking a security clearance.
But might those nevertheless be valid bases upon which to revoke someone’s clearance? Can the president pull this off? As a colleague of mine who still works for the government would say, “it depends.”
The Security Clearance Process Itself
The entire process of granting, denying or revoking someone’s security clearance is derived from the president’s Article II authority as commander in chief. The president is the ultimate classifier of information and, at least in theory, the ultimate decider on who is granted access to classified information. The operative document on security clearance determinations, including appeal rights afforded to individuals whose security clearances are denied or revoked, is Executive Order 12968 (as amended). That order outlines the procedures by which the executive branch agencies identify who requires a security clearance, the standards for investigating an individual’s background and the mechanisms by which individuals can seek administrative relief if an adverse security determination is made.
There is a critical distinction that often is misunderstood—even by individuals who have worked in the cleared community for decades—between “access” and “eligibility for access” to classified information. When an individual is granted a security clearance, all that means is that that person has been favorably adjudicated and is “eligible for access” to classified information at a particular level (whether confidential, secret or top secret). That eligibility remains valid for a certain number of years depending on the level of classification for which the individual was favorably adjudicated (for example, a secret-level clearance is valid for 10 years).
Access, in and of itself, is the subsequent step taken by the agency to provide the cleared individual with the means by which to use classified email accounts, utilize classified databases and work in a classified office space. When, for example, Comey was fired, his “access” was immediately cut off. He was “debriefed” from any compartmentalized programs to which he had been accessed, his credentials were taken away and he probably signed several “briefing acknowledgment” forms confirming that he had been debriefed. Comey’s “eligibility,” however, was not affected by his termination. What the White House threatened to do on Monday was to revoke Comey’s eligibility.
The Legal Limits
The judiciary has largely concluded that, with limited exception, the courts have no role to play in the security clearance arena. The Supreme Court infamously ruled in Dep’t of Navy v. Egan that Congress had not afforded it the jurisdictional authority to review the substantive merits of a security clearance determination. In subsequent years the courts have uniformly relied upon dicta from the Egan ruling to state that the judiciary has no role at all in the substance of security clearance determinations.
The one exception to this rule is when procedural due process protections are implicated under the Fifth Amendment. A mere four months after its ruling in Egan, the Supreme Court issued Webster v. Doe, which opened the door ever so slightly to permit judicial review of colorable procedural constitutional claims implicating national security personnel determinations. The high court in Webster concluded that, absent express congressional language, it would not construe statutes in a manner that would preclude judicial review of constitutional claims implicated by the government’s implementation of those statutes. That slight opening has nonetheless been the premise upon which the lower courts have, on rare occasions, seen fit to pry into the bureaucratic workings of the process of revoking an individual’s security clearance.
If Trump does in fact move to retaliate against the aforementioned individuals, there are three different scenarios that might occur.
1. The Standard Process
Setting aside the merits of stripping the clearances of these former officials in the first place, this would be the most advisable option for the president to take from a legal, policy and public relations standpoint. It is the process to which virtually all cleared individuals are afforded when their clearances are denied or revoked, and it is the process with which I routinely interact across the intelligence community.
That almost certainly means it is the one option Trump will not take.
This option would involve the respective agencies that still sponsor and control the security clearances of the aforementioned individuals initiating an adverse security proceeding to revoke their respective security clearances. In the case of Comey, for example, the FBI would issue a memorandum indicating that the decision had been made to revoke his security clearance. The memorandum would outline the specific factual allegations at issue, the particular adjudicative guidelines implicated and notify Comey of his right to appeal the determination within the Department of Justice. Pursuant to Executive Order 12968, Comey would ultimately be afforded two levels of administrative appeals (including a “personal appearance” before a senior panel of officials) before any final determination is made.
Trump is unlikely to go down this path because it affords far too much due process for his taste. What’s more, it would require civil servants at the respective agencies to sign off on the paperwork. I can say with a reasonable degree of confidence that those civil servants would not put their names on a document moving to revoke someone’s security clearance for nothing other than bad-mouthing the president on television or writing a book (both of which are protected activities under the First Amendment, assuming no classified information was disclosed—and there is no evidence that any was, despite complaints from the White House about Comey’s “leaking”).
2. The National Security Exception to the Standard Process
Not too surprisingly, the appeals procedures outlined in Executive Order 12968 contain a “national security” exception that permits an agency to sidestep the procedural requirements of the order. Section 5.2(e) of the order permits an agency to revoke someone’s security clearance without appeal rights if, but only if, the agency head states in writing that those procedures cannot be invoked in a manner that is consistent with national security.
This is a rarely-used provision that nonetheless is probably far more to Trump’s liking. Again, however, this would necessitate current agency heads such as FBI Director Christopher Wray to attest that it would be inconsistent with national security to afford appeal rights to Comey or McCabe. The odds are not in Trump’s favor that Wray would consent to putting his name on such a document.
3. The Inherent Article II Authority Option
That leaves the final option: The president could claim the inherent constitutional authority to revoke the clearance eligibility of each of the individuals without any due process. There is no precedent for such an action, as no president (at least as far as I am aware) has ever personally intervened in the clearance revocation (or approval) of an individual. That has never happened before because past presidents—whatever their flaws or scandals—knew there were certain institutional norms and customs that a president simply should not disturb.
Trump, though, is not burdened with an affinity for respecting institutional norms. He already bulldozed those norms when it came to hiring his daughter and son-in-law, refusing to place his assets in a blind trust, and refusing to disclose his tax returns. What is to stop him from running over another norm?
If the president were to take this unprecedented exercise of his authority, it is anyone’s guess how the courts would construe the issue. It would set up a serious clash of constitutional questions between the inherent authority of the president regarding classified information, the procedural due-process rights of clearance holders under the Fifth Amendment, and the extent to which the judiciary is even permitted to rule on the matter.
As the president would say, we’ll just have to wait and see.