Security clearances: What exactly can Trump do?

Posted at 6:16 PM, Jul 23, 2018

President Donald Trump's willingness to consider revoking the security clearances of past officials is unprecedented and security analysts say it could carry dire consequences -- even if they agree he holds the power to do it.

Top officials sometimes maintain their access so that they can provide requested counsel to their predecessors on classified matters, analysts said. This denial of access will eliminate that as a possibility, national security experts said.

The move, aside from causing a political backlash, could also undermine the entire security system -- from a privilege based on status and character -- to a weaponized political tool, security analysts said.

"It is absolutely unprecedented," said former FBI Special Agent Frank Montoya, who has extensive experience in counterintelligence matters. "In the end, the President is the final authority (on security clearances), but it's an abuse of power."

Does Trump have the authority to do this?

The normal process is for the issuing agency to conduct appropriate reviews and make determinations about clearance status. But White House press secretary Sarah Sanders said Monday that Trump was considering revoking the clearance of six former national security officials for their comments about Trump regarding "accusations of improper contact with Russia" or him "being influenced by Russia."

To make this happen at the agency level, Trump could follow the decades-old executive order in place, which provides a written explanation to the clearance holder and an opportunity to reply. Officials could also try to invoke the "interests of national security" clause, which is found in that section, and avoid the detailed procedures. Finally, Trump could decide he is revoking eligibility for the former intelligence officials unilaterally.

The CIA, FBI and Office of the Director of National Intelligence declined to comment.

Experts emphasize there is no legal precedent if the President revokes clearances on his own, as typically revocations would be done by the agency and not for political purposes.

Who is Trump looking at?

The list of former officials under consideration includes former CIA Director John Brennan, former Director of National Intelligence James Clapper, former FBI Director James Comey, former national security adviser Susan Rice, former deputy FBI Director Andrew McCabe and former National Security Agency Director Michael Hayden, according to Sanders, even though several no longer have active security clearances.

"They've politicized, and in some cases, monetized their public service," Sanders said during a press briefing. "Making baseless accusations of an improper relationship with Russia is inappropriate."

Sanders would not say when the President would make the decision; she said only that the White House would provide updates when it had them.

What would change?

National security lawyer Bradley Moss, who routinely represents clients in security clearance disputes, said Monday it's important to distinguish between "access" and "eligibility" to receive classified information. For former FBI officials such as Comey and McCabe -- who were fired -- their access to classified information was terminated when they left government service.

"It's not really a revocation where it's already gone," Montoya explained.

But former top national security officials, such as Clapper and Brennan, have decades of institutional knowledge and security clearances provide them the ability to consult on specific matters with current officials and provide insight if asked.

"It's a red herring to say they're monetizing it -- what senior official doesn't try to write a book?" Montoya added.

What guidelines currently exist?

There are 13 guidelines for clearances, which were established many years ago, says attorney Mark Zaid who adds, they were tweaked during the Bush and Obama administrations to the further benefit of the clearance holders.

According to Zaid, who regularly represents security clearance applicants, not one of the 13 guidelines pertains to political views. The closest one says that anybody who supports the "violent overthrow" of the US government should not have access to US intelligence. Holding an opposing view to any administration does not have any relevance, Zaid said.

What could the long-term effects be?

Steven Aftergood, director of the Federation of American Scientists project on government secrecy, said the move would turn intelligence from a security procedure to a political tool -- one Trump can't exercise without some sort of cause.

"He can't just say, 'I don't like those guys,' or 'They were mean to me,' " Aftergood said. "He would need to specify a particular offense that they committed that would justify revoking their clearance. Saying mean things about the President wouldn't qualify."