A Potential Recourse for Targets of White House Security Clearance Threats

The White House has recently stated that it is considering revoking the security clearances of several former high ranking public officials. In a July 23 press conference, White House Press Secretary Sarah Sanders stated that President Donald Trump was looking to revoke the clearances of former CIA Director John Brennan, former FBI Director James Comey, former Director of National Intelligence James Clapper, former National Security Agency Director Michael Hayden, former National Security Adviser Susan Rice, and former Deputy FBI Director Andrew McCabe. Sanders claimed that this was because those former officials had “politicized and, in some cases, monetized their public service and security clearances.” Sanders did not suggest the proposed revocation is grounded in an allegation of unauthorized disclosure or other violation of regulations.

Such a move would be unprecedented, and the repercussions are potentially far-reaching. In particular, commentators have considered the legality of such a move and the legal recourses that Brennan and co. have were their security clearance to be revoked. Revocation would be damaging. It would preclude former officials from future involvement in government. It would penalize them, in part, for core political speech. That would also have a ‘chilling precedent’ effect on other intelligence officials. Potentially even more concerning, however, is that the public statements directly call into question the character and integrity of those former officials while being in character for an administration that is increasingly uneasy with its own intelligence community.

There is a legal recourse for the targeted former officials should the White House act. The Due Process Clause of the U.S. Constitution entitles an individual to due process if they are “deprived of life, liberty, or property.” Because of the damaging statements made regarding these individuals, the White House cannot legally revoke the security clearances of those named individuals without providing a constitutionally acceptable level of procedural due process. While the individuals in question do not have a property interest in a security clearance, if the White House revokes these clearances after making public allegations, it will damage the reputations of those officials, depriving them of a protected Fifth Amendment liberty interest.

A judicial court has the right to hear this claim. In the landmark case Webster v. Doe, the Supreme Court found that, without a clear statement by a statute or executive order to the contrary, constitutional claims regarding government determinations on national security personnel may be judicially reviewable. A federal judge may review a claim by these officials that revocation of their security clearances deprived them of a protected liberty or property interest. A finding of such a deprivation entitles them to due process. Nonetheless, where national security is concerned, and where there is a large degree of discretion, courts have shown deference to the executive branch.

While there is no property right to retain a security clearance once it has been given, there are constitutionally significant liberty interests at stake. Appellate courts have cited the reasoning in Department of Navy v. Egan that “no one has a ‘right’ to a security clearance” to determine that plaintiffs do not have a property interest. The threshold for a government benefit to constitute a property interest is that it can only be revoked ‘for cause’ (Logan v. Zimmerman Brush Co.)  or that discretion is otherwise similarly limited. Executive Order 12968 states that “a determination of eligibility for access to such information is a discretionary security decision based on judgments by appropriately trained adjudicative personnel.” This high level of discretion means that security clearances clearly do not rise to the level of property interests. Moreover, since this language does not discriminate between an initial determination and a revocation, the fact that Trump is seeking to revoke, rather than deny access, is immaterial here.

But the targeted officials’ liberty interests in their public reputations are another matter. While commentators have already noted that the revocation of security clearances alone does not give rise to constitutional claims, these former public officials already singled out by the White House are likely to succeed in a claim that their constitutionally protected liberties have been deprived. The revocation of their security clearances following public allegations simultaneously injures them and deprives them of a tangible interest, and so rises to a deprivation of liberty. Following Wisconsin v Constantineau (finding that a state statute allowing posted notices forbidding sales of alcohol to a person deprived them of a protected liberty interest because it stigmatized them and damaged their reputation), courts have often considered damage to reputation an injury that, when combined with the loss of a government benefit, triggers the implication of a liberty interest. The holding in Constantineau was subsequently narrowed by Paul v. Davis and Siegert v. Gilley. Siegert clarifies the test developed in Paul v. Davis in stating that “injury to reputation does deprive a person of a liberty interest when the injury is combined with the impairment of ‘some more tangible’ government benefit.”

If the White House revokes security clearances following its public statements, it is both impairing a tangible government benefit and injuring the reputation of former officials, and thereby depriving them of a protected liberty interest. A security clearance, while not rising to the level of a property interest, is a tangible interest. It is essential for public employment, which Paul v. Davis clearly identifies as a tangible interest itself. A revocation would therefore effectively preclude further government employment for those officials.

These former officials would suffer significant reputational damage by the combination of public allegations about misusing security clearances followed by security clearance revocations. The allegations are serious. They call into question the moral character and integrity of the individuals involved and undermine the honorable characterization of their public service. Additionally, the statements come in a White House press conference, meaning they are more damaging than any of the other statements in other cases discussed here, both in the level of publicity and the discussion they create.

The Supreme Court has previously found a deprivation of a protected liberty interest when public statements by government officials were involved. In Owens v. City of Independence, the Supreme Court found that a protected liberty interest was deprived when the City of Independence fired its chief of police following public accusations by a councilman of a range of conduct constituting malfeasance in office. In the present case, the White House has officially announced the misconduct of this group of individuals, making the accusations much more powerful than in Owens. Moreover, the government benefit in Owens is similar to this case. Just like a security clearance, the incumbent officer has no right to the chief of police job. However, the chief of police job and a security clearance are both government benefits because both provide substantial advantages to the holder. Therefore, similar to Owens, the loss of a security clearance combined with accusations of wrongdoing leads to the deprivation of a liberty interest.

The administration might respond that the allegations made by the White House were not incidental to the revocation of the clearances. In Siegert, the Court found no deprivation of liberty because the “alleged defamation was not uttered incident to the termination of Siegert’’s employment.” Similarly, in Department of Navy v. Egan, the court stated that a decision of security clearance is merely a highly discretionary attempt to predict future behavior rather than a judgment on a person’s character. But a revocation is different if grounded in a public allegation of misconduct that cannot be untethered from reputational damage. Unlike in Siegert, the statements here occurred prior to the loss of the benefit, and the allegations were explicitly given as a cause for the action. And, in contrast to Egan, the public statement by the White House press secretary put these former officials’ character at the center of the revocation decision. Barring some credible action by the administration demonstrating that revocation was unrelated to prior statements, there will be a clear and perceptible connection between the two.

Finding that a revocation deprives Brennan and co. of a protected liberty interest would also be a straightforward application of the D.C. Circuit’s reasoning on security clearances. In 1989, the D.C. Circuit considered a similar fact pattern in Doe v. Cheney. While ultimately finding that there had been no deprivation of liberty because of a revoked security clearance, it admitted that the inquiry was ‘somewhat more complex.’ It applied a version of the test in Siegert: for there to be deprivation of a liberty interest, the plaintiff needed to prove that the government’s actions “both altered his status and stigmatized his reputation.” The court found that the revocation of a security clearance by the NSA did alter the status of the plaintiff. Ultimately, however, it found that no protected interest was deprived because “NSA’s actions do not, however, appear to be stigmatizing because NSA did not make public accusations that will damage Doe’s standing and associations in the community.” Essentially, the only reason the DC Court of Appeals did not find a protected interest in that case was that no public statements were made.

This missing element in Cheney is present here. In this case, the White House has made public statements, and those public statements are damaging to Brennan and co. This damage would be compounded if revocations follow. The reasoning in Cheney supports the existence of a constitutionally protected liberty interest here.

Of course, none of this will ensure that these officials can block their security clearances from being revoked in court. The result of claiming a deprivation of liberty under the Due Process Clause is that you are entitled to due process, not to the underlying liberty. Brennan and co. can make the case that they should be afforded more process than they might have been given by a Trump revocation. However, it remains uncertain that a court, having found a protected liberty interest, will also find that the procedure mandated in Executive Order 12968 is inadequate to meet the requirements of the Constitution.

There will be concerns, including among judges themselves, that finding a protected interest in this case and overturning an executive branch decision could compromise national security. These concerns are unfounded. A court decision striking down revocations would not be limiting the discretion of the executive branch to make decisions about access to classified material in general. Rather, the court would be seeking to provide a narrow protection from a highly unusual and troubling pattern of operation: making highly public allegations against former public officials impugning their character, and then taking action that negatively impacts their future prospects. In so doing, the court would be providing constitutional protections to individuals from a White House that has increasingly made it its modus operandi to use public forums of communication to target and harass individuals who seek to criticize the administration.

Photo by Alex Wong/Getty Images

 

About the Author(s)

Vartan Shadarevian

Second year law student at Harvard Law School and executive editor of the Harvard National Security Journal.