President-elect Trump’s Picks Redefine “Two-Tiered System of Justice”

With his selection of retired Lt. Gen. Michael Flynn to serve as national security adviser, his continued consideration of retired Gen. David Petraeus for a possible administration position, and his reported selection of ExxonMobil CEO Rex Tillerson to serve as Secretary of State, President-elect Donald Trump is picking people whom, I believe, would normally face challenges getting a security clearance. To get them into the highest levels of government, Trump appears determined to see just how far he can push the boundaries of executive authority in terms of access to classified information. In doing so, Trump has simultaneously denigrated the reality faced by countless rank and file employees and contractors within the intelligence community.

Trump himself will not have to undergo security vetting and he cannot be denied access to classified information. As president and commander-in-chief, he is entitled to access any and all classified information he wants. The security vetting he underwent was being elected.

The same is not true of his senior staff and cabinet selections, who also have to be separately confirmed by the Senate. As president, Trump can theoretically order any of his senior staff or cabinet officers to be granted a security clearance, no matter what concerns are raised during the security vetting. That is a privilege afforded to every president by way of their Article II authority under the U.S. Constitution. It is a privilege many expected Hillary Clinton might have had to exercise if she had been elected president and had chose her longtime advisers, Cheryl Mills or Huma Abedin (both of whom were implicated by FBI Director Comey’s “extreme recklessness” comments), for positions requiring security clearances.  

That caveat aside, a common question I get asked is: Would someone like Flynn,  Petraeus or Tillerson be granted a security clearance if they were a rank and file employee? While nothing is ever certain, and clearance matters are always case-specific, it is my professional opinion that the odds would be heavily stacked against any of them ordinarily being cleared.

Flynn had a lengthy career in the Army, including serving as director of the Defense Intelligence Agency, and maintained a security clearance throughout that career. It is likely that he would have to undergo a renewed investigation in order to be granted access to classified information again, and his conduct since leaving government service is the type that would almost certainly give security adjudicators pause in ordinary circumstances. Flynn’s consulting company not only lobbied on behalf of foreign companies with close ties to the Turkish Government, he more importantly failed to separate himself from that connection (let alone notify the U.S. government of it) prior to attending classified briefings with then-candidate Trump. If a rank and file employee had engaged in such conduct while a private citizen, it is more than likely it would have been flagged by Security as an act that not only exposed the employee to foreign influence but more importantly raised concerns about the employee’s trustworthiness and good judgment. When combined with the revelation that Flynn had a private Internet connection installed in his office at the Pentagon, in apparent defiance of security rules, it would be reasonable to anticipate that he would face serious uphill sledding to get cleared again.

Petraeus’ security red flags are, of course, rather well known. He pled guilty in 2015 to unauthorized removal of classified documentation. In his plea agreement, he also admitted that, while serving as CIA director and sitting in his office at Langley, he knowingly and deliberately lied to FBI investigators about his actions. Mishandling classified information is one thing, and in the case of Petraeus it is possible it could be mitigated as an isolated incident that pales in comparison to the rest of his career. Deliberately lying to the FBI during an investigation about mishandling classified information, on the other hand, would ordinarily serve as the death knell for a person’s ability to be entrusted with access to classified information ever again. It is considered a felony and can result in up to five years in prison. If Petraeus is once again granted access, it would be an insult to countless rank and file individuals (including several my firm represented at the CIA while Petraeus was the director) who were denied access and/or lost their existing access to classified information due to disputed or unsubstantiated allegations of providing false information to investigators.

All of this brings us to Tillerson, the CEO of ExxonMobil who media reports indicate will be announced as Trump’s choice for Secretary of State. Putting aside questions about his qualifications to serve in the post (that is a matter for the Senate to consider), it is Tillerson’s specific foreign connections that are particularly concerning. He is reportedly close friends with Igor Sechin, the head of the Russian oil company Rosneft, a close confidant of Russian President Vladimir Putin, and (to put the icing on the cake) a named individual on the U.S. government’s financial sanctions list. More importantly, Tillerson was given the Order of Friendship by Putin in 2012. The Order of Friendship is the highest civilian honor the Russian government can bestow upon a non-Russian national. In ordinary circumstances, all of these details would be viewed as a glaring red flag implicating concerns about the extent to which the individual’s foreign connections have exposed them to foreign coercion or conflicted interests.

To imagine Tillerson being granted a security clearance in this context would be a slap in the face to countless clients of my firm. We have had clients denied clearances for maintaining a friendship with a childhood friend who holds dual citizenship and fulfilled a mandatory tour of duty in the military of the other country with which they maintain citizenship. We have had clients denied access due in part to ties to extended family members who serve as local elected officials in a foreign country, such as mayor of a small town. We have even represented clients such as John Dullahan, a long-time defense analyst who lost his security clearance for reasons that, to this day, remain classified and regarding which Dullahan has never been informed but which we suspect concerned decades’ old allegations of inappropriate discussions with then-Soviet officials.

Controversy is not new to Trump, and it does not appear he is all too troubled by it. His own foreign financial connections and questionable affinity for foreign government officials, such as Putin, plagued him throughout the campaign, yet the American public ultimately voted to elect him president all the same. One has to imagine he has concluded that, in the end, the controversies were much ado about nothing in the mind of the American public.

If he continues down this path, however, he will likely have to personally intervene to ensure several of the people he wants working in his administration are able to obtain a security clearance. To my knowledge, there is no confirmed historical precedent for this type of direct intervention on behalf of someone being considered for a formal U.S. government position. And let that be Trump’s legacy. 

About the Author(s)

Bradley P. Moss

Washington, D.C. National Security Attorney and Partner at the Law Office of Mark S. Zaid, PC Follow him on Twitter (@BradMossEsq).