Brennan’s Due Process Case Against the White House

In an unprecedented move, the White House announced that President Donald Trump was revoking the security clearance of John Brennan, the CIA director in the Obama administration. I argued in an earlier piece that if the White House were to revoke Brennan’s security clearance, the government would owe him some level of procedural due process. The president’s act transforms that hypothetical into reality. Now, Brennan has indicated he is willing to take President Trump to court to in order “to try to prevent these abuses in the future.” A constitutional due process claim should be at the center of Brennan’s legal strategy.

Press Secretary Sarah Sanders, in a prepared statement, reiterated claims made against Brennan in a press conference on July 23rd. She accused Brennan of “erratic conduct and behavior” and stated that he “leveraged his status as a former high-ranking official with access to highly sensitive info to make a series of unfounded and outrageous allegations, wild outbursts on internet and television about this administration.” Sanders made further claims about Brennan’s “lying and recent conduct.” Sanders also repeated a long list of others from whom the White House was considering revoking security clearances.

This is not business as usual. To my knowledge and that of at least one foremost commentator on security clearances, there are no cases in recent history where the President of the United States has played a direct role in the granting or denial of security clearances.

Generally, determinations about security clearances are made on the basis of judgments about an individual’s “loyalty to the United States, strength of character, trustworthiness, honesty, reliability, discretion, and sound judgment, as well as freedom from conflicting allegiances and potential for coercion, and willingness and ability to abide by regulations governing the use, handling, and protection of classified information.” A security clearance can often take over a year to obtain. The loss of a clearance, therefore, can prevent a person from obtaining a job or pursuing opportunities in fields in which they have spent their life working.

Brennan’s clearance revocation is clearly connected to two separate statements made by the White House that cast serious aspersions on his character in terms of both his mental stability and integrity. These two actions – the revocation plus the public statements – combine to infringe on a constitutionally protected liberty interest. Brennan was entitled to procedural due process under the Fifth Amendment of the U.S. Constitution. To the best of my knowledge, no such procedure has been afforded to him.

Brennan can therefore sue. The U.S. court system has authority to review the White House’s actions here. The landmark case Webster v. Doe opened the door to constitutional review of national security personnel related decisions of the U.S. executive branch. Now we will see whether Brennan will seek to vindicate his due process rights.

Did the White House Deprive a Protected Interest?

The White House’s actions – revocation of security clearance combined with multiple public derogatory statements about Brennan – deprive him of a protected liberty interest. Brennan is therefore entitled to due process before such a deprivation occurs. There is no liberty or property interest in the security clearance alone. The tenth circuit has stated that “In the Egan context, it’s well-established that people do not possess a protected liberty or property interest in security clearances.” However, there is a protected liberty interest because of the public statements that the White House has made incident to its revocation.

Security clearance revocations, by themselves, do not implicate due process requirements. The Supreme Court found in Department of Navy v. Egan that “no one has a ‘right’ to a security clearance.” Brennan has not been deprived of property in the constitutional sense. 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.” The Supreme Court has been clear that for Brennan’s security clearance to be his ‘property’ in the constitutional sense, Trump’s discretion to revoke it needs to have been limited.

Similarly, no liberty interest exists in a security clearance itself. Lower courts have continuously found that the revocation of a security clearance does not by itself implicate the Due Process Clause (see herehere, and here).

The current case is different, however, because the White House has twice made public statements that are damaging to Brennan’s reputation. Previous Supreme Court and D.C. Circuit cases indicate that Brennan may have been deprived of constitutionally protected liberty. The seminal case on reputational damage and procedural due process is Wisconsin v Constantineau, where the Supreme Court found 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. The modern rule on reputation as a liberty interest was developed in Paul v. Davis and Siegert v. Gilley, and requires that there be an injury to reputation and another, incidental, damage to a more tangible benefit. The Court in Siegert stated 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.”

The government’s actions with regards to Brennan meet this test. The two public statements by Press Secretary Sarah Sanders, one of which targeted Brennan alone, call into question his moral character and harm his reputation and his ability to find work either inside or outside the government. The revocation of a security clearance, moreover, is ‘more tangible’ impairment than the public statements. The sum of these two actions, therefore, is sufficient to create a protected liberty interest.

The case most relevant to this argument is Doe v. Cheney, which the D.C. Circuit decided in 1989. In Doe, the complainant, John Doe, was dismissed from his position working for the National Security Agency (NSA) after his security clearance was revoked. The court considered whether the security clearance revocation was depriving Doe of a protected liberty interest. Applying the test developed in Siegert and other Supreme Court cases, the D.C. Circuit found that there was no deprivation 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.” That is to say, there was the infringement of a tangible benefit, but no associated injury to reputation that is a necessary ingredient for finding a liberty interest. Here, the government made repeated public accusations. The accusations by Press Secretary Sarah Sanders are damaging to Brennan’s standing and associations in the community; they meet the standard of an injury to reputation.

The White House would likely contend that, unlike in Doe, Brennan is not currently in the employ of the U.S. government. In that case, the NSA revoked Doe’s security clearance and, finding his employment without security clearance to be of little value, also dismissed him. Here, Brennan does not currently have a job dependent on his clearance, and so revocation does not deprive him of an acute interest in present employment.

However, the Court in Paul indicated that the impairment of a ‘more tangible’ benefit need not be dismissal from employment, but need only constitute “an attendant foreclosure from other employment opportunity.” In an earlier D.C. Circuit case, Mosrie v. Barry, the court held that it is sufficient that the government can be said to have foreclosed “a right to be considered for government contracts or employment or a right to seek non-government employment.” Security clearance revocation meets this standard.

How Much Process was Brennan Due?

Generally, an agency revoking a clearance must follow the procedures contained to Section 5.2 of Executive Order 12968, which include requirements of written notice of and reasons for the results of the review, and a right to appeal. However, since the President of the United States issues an executive order, President Trump does not deem himself bound by this order.

In contrast, however, a constitutional requirement of procedure remains in place even when the revocation comes from the White House. The Constitution states that when a protected liberty interest is deprived, the government owes the deprived individual “due process of law.”

At a minimum, due process requires fair notice and an opportunity to be heard. The Court in Mathews v. Eldridge quoted Justice Frankfurter’s concurrence in Joint Anti-Fascist Comm. v. McGrath in saying that “The essence of due process is the requirement that ‘a person in jeopardy of serious loss (be given) notice of the case against him and opportunity to meet it.’” In Constantineau, the Court found that “where a person’s good name, reputation, honor, or integrity is at stake,” notice and opportunity to be heard were crucial.

The level of notice and opportunity to be heard required, however, depends on the importance and circumstances of the deprived protected interest. The test for determining the amount of procedure that is necessary for deprivation of a protected interest comes from Mathews. The Court in Mathewsfound that there was a three-factor test for determining the required process:

  • The private interest affected by the action,
  • The risk of erroneous deprivation under the current procedure, and
  • The government’s interest in using the required procedures.

No court has made a determination about the adequate level of procedure for a security clearance revocation plus public statement. A court would therefore look to weigh the three factors directly in the current case.

Brennan clearly has an important personal interest in his security clearance, for the same reason he has a liberty interest at all – his reputation is at stake. The statements by Sanders, all the more potent for their plurality, attack Brennan’s character and potentially cause irreparable harm to his reputation. Brennan’s current interests, as a former intelligence official, depend on his ability to reenter the employment in the government and on his reputation outside it for consulting work. The revocation hinders the first, and the public statements damage the second.

Determining the risk of erroneous deprivation is more difficult. For starters, what is an error? If the decision to grant or revoke security clearances is truly discretionary, then it is unclear how a deprivation can be ‘erroneous.’ However, there are categories of error that might occur regardless. The White House’s stated reasons might be false, or they might not be adequate reasons for security clearance revocation according to the Executive Order 12968. In addition to this, deprivation here means not just the revocation, but also the public statements. The public statements might be part of an erroneous deprivation of Brennan’s liberty interest if they are false, or if they are unnecessary. Without proper process to investigate the allegations – which include that Brennan is abusing his access to the United States’ secrets “to make a series of unfounded and outrageous allegations” – a court might well find that the risk of error is significant.

Finally, a court would weigh the government’s interest. Usually this is a consideration of the government’s interest in speedy processing of its actions, and in avoiding the administrative costs of further procedure. For a security clearance revocation alone, the government’s interest is significant. National security concerns are both incredibly important and usually urgent, and so the administrative burdens that additional procedure would place might be harmful. However, it is hard to see how disparaging public statements here further a government interest. If important national security interests were served by the actions the government took, those interests would have been served just as well by a revocation alone.

The Doe court came closest to considering the required due process for someone in Brennan’s shoes. The court opined that if the NSA’s act of revoking a clearance in that case constituted a constitutional deprivation, “due process entitled Doe to a hearing in order to refute the charges against him and to clear his name.” The NSA did in fact provide Doe with notice, consideration by a board of appraisal, and opportunity to respond to the concerns about him. The D.C. Circuit found that these procedures were adequate if any protected liberty interest existed. In that case, however, there were no public statements, which as argued shift the analysis in favor of more due process. Therefore, a court will likely find that the absence of such procedure is a due process violation, and might find such a violation even if such procedures were afforded to Brennan.

Reviewability Concerns

The greatest uncertainty about a case Brennan might bring against the government stems from the fact that courts have shown significant deference to the President’s powers as “Commander in Chief of the Army and Navy of the United States” specified in Article II of the Constitution. Thus, consistent with the Court’s reasoning in Egan, a court might decide that it has no authority to review a national security determination made by the President of the United States, regardless of the content of the President’s reasoning for such an action.

A presumption of non-reviewability, however, does not apply to public statements made by the White House. The two press conferences, in which Sanders read out a litany of claims against Brennan and other former intelligence officials, was not an example of the President exercising his Article II powers. Therefore, Brennan should argue to a court that it has jurisdiction to review the government’s actions on two grounds. First, Brennan should claim that the government erred in not providing more due process. This error is reviewable by a court because it is not directly tied to a President’s ability to exercise his Article II powers, but to the process he provides in exercising them. Second, he should claim that the specific liberty deprivation explained above, because it involves public statements as well as a revocation, does not infringe on the President’s Article II powers. The President could just as effectively acted as Commander-in-Chief by revoking Brennan’s clearance without making public accusations, and a court does not impair the President’s ability as Commander-in-Chief by reviewing that precise combination of actions.

Implications

The above analysis, of course, does not provide a legal guarantee against security clearance revocation, or even against security clearance revocation for an individual against whom a public statement is made. The Due Process Clause does not protect against a deprivation of life, liberty, or property – as long as a constitutionally acceptable level of procedure is provided. As long as the White House gives Brennan adequate process, it can revoke his clearance and even make public statements incident to those clearances. There may be other legal claims, on a more substantive note, that Brennan can bring to court, that would prevent a revocation outright. For example, Brennan might claim a First Amendment violation.

Nonetheless, the legal analysis above remains important. First, if Brennan has not been afforded a constitutionally acceptable level of procedure, then he has a legal recourse that could ultimately reverse the revocation, at least temporarily. The White House might not have the appetite to go through the process of revocation a second time. More generally, however, by raising the administrative burden for security clearance revocation, it might dissuade the White House from using revocations as part of a tactic of public humiliation.

Photo by Drew Angerer/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.