Let’s begin with two assertions that should, at least, be relatively uncontroversial. First, Article II of the United States Constitution grants the president broad authority to defend the nation as commander in chief of its armed forces. Second, that authority is not so broad as to always override individual constitutional rights whenever the president deems the two to be in conflict.
To take an extreme example, while the president clearly can exercise great control over the standards for entry into and promotion within the military, no one would credibly argue that he can ban recruits from the opposing party. While the president clearly can exercise great control over who receives a security clearance, he could not revoke clearances from all Democrats on the grounds that the #Resistance was too pervasive in the party’s ranks.
In other words, in our constitutional system, even great power carries with it constitutional limits. Moreover, it is right and proper to weigh any given executive action against those limits.
And that brings me to Donald Trump’s decision yesterday to revoke former CIA director John Brennan’s security clearance. In the formal statement announcing the action, the White House articulated reasons for the termination that — on their face — raised no serious constitutional concerns. According to the administration, Brennan was “erratic,” had a history of behavior that “calls into question his objectivity and credibility,” and engaged in “increasingly frenzied commentary.”
One claim in particular stands out as particularly damaging to Brennan:
In 2014 . . . he denied to Congress that CIA officials under his supervision had improperly accessed the computer files of congressional staffers. He told the Council of Foreign Relations that the CIA would never do such a thing. The CIA’s Inspector General, however, contradicted Mr. Brennan directly, concluding unequivocally that agency officials had indeed improperly accessed congressional staffers’ files.
Only a blindly dedicated partisan would claim that lying to Congress doesn’t raise concerns about an official’s truthfulness and character. If that was the true reason for revoking Brennan’s security clearance, then he should absorb the blow, move on, and consider himself fortunate. He’s faced only minimal sanction for a serious offense.
But what if that’s not the real reason he lost his clearance? What if the real reason is the one articulated by President Trump himself in an interview with the Wall Street Journal? There, Trump decried the “rigged witch hunt,” declared that “these people led it,” and added that “it’s something that had to be done.” By “these people” he was apparently referring not just to Brennan but also to former director of national intelligence James Clapper, former FBI director James Comey, and former NSA chief Michael Hayden.
Quite a few Twitter conservatives have waved off the apparent political motivations for Trump’s decision with a simplistic declaration that no one has a right to a security clearance. The more sophisticated Trump defenders point to Department of the Navy v. Egan, a SCOTUS decision that technically answered the “narrow question” of “whether the Merit Systems Protection Board (Board) has authority by statute to review the substance of an underlying decision to deny or revoke a security clearance in the course of reviewing an adverse action,” but also contained much broader dicta (non-binding but persuasive discussions by the Court) reaffirming the Court’s “utmost deference” to “the authority of the Executive in military and national security affairs” and noting that courts are “reluctant to intrude.”
“Reluctant,” however, is a cautionary term. It is not prohibitionary. As D.C. Circuit Court judge Gregory Katsas wrote just last month, the question of “whether a plaintiff can seek to undo the denial or revocation of a security clearance, based on non-frivolous constitutional challenges to investigatory or even adjudicatory processes” is both “weighty and difficult” and undecided. Lest you wonder, Katsas happens to be a Trump appointee who made his bones as a clerk for Justice Clarence Thomas.
Generations of precedent suggest that the president does not possess entirely unreviewable authority over the substance of security-clearance determinations. Though he does enjoy broad discretion, it’s clearly bounded by limits, even if they haven’t yet been fully defined by the courts.
If the Brennan decision winds up before the courts, it won’t be enough for the Trump administration to simply cite Article II. It won’t be enough for the Trump administration to merely note that “no one has a right to security clearance.” Administration lawyers will have to grapple with generations of case law not only holding that even members of the military possess First Amendment rights (though those rights are limited by the requirements of service) but also that — as a general rule — government employees and private citizens have a right to protection from government retaliation for the exercise of their First Amendment rights.
Generations of precedent suggest that the president does not possess entirely unreviewable authority over the substance of security-clearance determinations. Though he does enjoy broad discretion, it’s clearly bounded by limits, even if they haven’t yet been fully defined by the courts. One of those limits should be that presidents cannot dispense or revoke the security clearances of private citizens (such as contractors or former government employees) in retaliation for the exercise of constitutionally protected political expression, short of evidence of disloyalty to the United States, instability, or vulnerability to improper influence. A security clearance is not a reward for good political behavior, and treating it as such has negative consequences for American national security. Does anyone doubt that John Brennan would still have his security clearance if his Twitter comments were just as frothy and erratic, but were instead aimed at the so-called witch hunt rather than the Trump administration?
Administration critics should note well that Brennan in many ways presents a poor plaintiff for a monumentally important constitutional test case. As noted above, his false statements to Congress alone provide an entirely legitimate reason to terminate his security clearance. But Trump’s statements indicating that the true motivation for the move was political, and his indications that he may target other former officials, are more than enough reason to be concerned that he views his authority over security clearances not as power held in trust to protect our nation’s security but rather as a weapon to wield against political foes in violation of the very Constitution he’s vowed to defend.