The Revocation of John Brennan’s Security Clearance

Here’s Trump’s statement on the revocation of John Brennan’s security clearance.  This was downloaded from the Washington Post.

I may, as updates to this posting, publish links to legal commentary on Trump’s actions.  Additionally, I believe that there is likely a formal legal document that effects the revocation.  I have not been able to locate that as yet, but I will post it as soon as it becomes available.

Update I.  In July, Bradley Moss had a piece in LawFare: Can the President Revoke Former Officials’ Security Clearances?   In the article, he links to Executive Order 12968.

Moss outlines three possible options that Trump might take to strip individuals of their security clearances.  Today, with respect to John Brennan, Trump chose the third, and most radical option.  As described by Moss in July:

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.

Emphasis added.

10 thoughts on “The Revocation of John Brennan’s Security Clearance”

  1. I assume that there is also a First Amendment issue, as Trump's action was no doubt based on Brennan's opinions about Trump.

    1. I would agree with that, but Moss' "third option," the one that Trump chose, bypasses any judicial oversight. Thus, while there may be a First Amendment issue, it is beyond review.

  2. It's not entirely clear that this is beyond judicial review. Moss wrote that, “If the president were to take this unprecedented exercise of his authority, it is anyone’s guess how the courts would construe the issue…. As the president would say, we’ll just have to wait and see.”

    I would say that any violation of the Constitution by the President is appropriate to consider in impeachment proceedings, though that remedy is out of reach as long a significant portion of the country is more loyal to Trump than to the Constitution.

  3. I'm not sure there's a 1st Amendment defense here. A secret clearance is a privilege, not a right, and if someone exercises their 1st Amendment right to say "I want to diddle little boys" then their secret clearance can be revoked.
    Now obviously criticism of the president is not the same as an expressed desire to become a sex offender; but clearly a secret clearance can be revoked due to speech.
    As Mr. Moss said above, Trump's action here was a violation of institutional norms, not a violation of the law or the constitution.

    1. Saying "I want to diddle little boys" is a statement indicating criminal activity, thus leaving one subject to blackmail and extortion. Saying "Trump is a narcissistic sociopath" is a correct statement of actual fact that would lead an observer to conclude that the declarant had astute powers of observation.

  4. As long as these people are out of government and not currently employed in jobs requiring a clearance, it's hard to make an argument they're being damaged — rather than just threatened. Does the president have a right to intimidate people?

    Once someone wants to hire one of those people for a job requiring clearance, you have pretty straighforward regulations about how clearances should be granted, and as far as I know they don't have a sidebar saying that the president can override those regs arbitrarily. That would be, among other things, interfering in private employment agreements and forcing other people in the executive branch to engage in corrupt acts.

    Classification authority flows from the president, but I think there's a good argument that once it's been delegated it's out of his hands and has to flow according to the rules laid out in regs, legislation and executive orders. Otherwise, a president could also unreviewably withdraw clearances from all women, afro-americans, jews or so forth, as long as he or she enumerated their names.

  5. There is no First Amendment issue here, and President Trump's ridiculous claim made no such charge. He cited his duty to protect classified information, but this is yet another staggering instance of hypocrisy — coming from the man who shared classified information with the Russians during an oval office visit, and who also openly discussed classified information in the dining room at Mar-A-Lago. It's retaliation against criticism, pure and simple.

    1. It is obvious that Trump's real reason was the viewpoint Brennan expressed. The courts may decide to take the President's lie about his reason at face value, as the Supreme Court did in Trump v. Hawaii, upholding Trump's Muslim travel ban. But they don't have to; the lower courts in Trump v. Hawaii did not.

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