The White House Counsel’s Flawed Response to Congress on Security Clearances

Intensifying congressional oversight activity prompted President Donald Trump to accuse Democrats of “presidential harassment.” He complained — falsely — that President Barack Obama never provided documents in response to congressional demands.  A more formal response came from White House Counsel Pat Cipollone in a letter to Rep. Elijah Cummings (D-Md.), chairman of the House Oversight and Reform Committee, in response to the congressional request, then demand, for White House records related to White House security clearance procedures. It’s not a good sign for relations between the two political branches during the coming contentious season of oversight.

There have been numerous reports of anomalies in security clearance procedures and standards in the Trump administration, although some security clearance problems have existed for decades. Most recently, the New York Times revealed that memoranda substantiate previous reports that President Trump ordered White House officials to grant his son-in-law, Jared Kushner, a top secret clearance over the objection of security professionals. Today, CNN reports a similar story about Ivanka Trump’s clearance.

Here I have expanded on my initial tweet thread analyzing the White House response.

The exchange of letters between Cummings and Cipollone represent the early stages of an oversight and accommodation process. It is not uncommon for the initial positions to be Congress asking for everything and the executive branch offering close to nothing. But the iterative process tends to move toward substantial accommodation of Congress’s information needs over time. That said, the tone of Cipollone’s letter is a cause for concern, especially accusing Cummings of “mischaracterizations” at this point in their relationship.

One of Cipollone’s legal arguments is worthy of attention.

Citing the Supreme Court in Watkins v. United States and McGrain v. Daugherty, Cipollone argues that “[b]ecause Congress derives its oversight authority from its legislative powers, my office must ensure that any request from the Committee serves a legitimate legislative purpose.” He then reiterates a prior demand that the committee justify “how your regulatory needs depend on the particular information you seek.”

The argument that a congressional committee needs to justify each request with a specific potential legislative action is a self-serving misreading of the constitutional basis of oversight and Supreme Court precedent. The power to investigate implied by the Constitution’s grant of legislative power to Congress is incredibly broad.

In a portion of the Watkins opinion not included in Cipollone’s letter, the Court states:

The power of the Congress to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws, as well as proposed or possibly needed statutes. It includes surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them. It comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste. But, broad as is this power of inquiry, it is not unlimited.

Thus, oversight can be an exploration of current administration of legislative policy or an exploration of newly needed legislative regulation. Further, in Barenblatt v. United States, the Court observed the “scope of the power of inquiry . . . is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.” Congress’s legislative power to enact federal legislation is incredibly broad, but its spending power is even broader — and under Barenblatt both are fair game for oversight.

The Oversight Committee has plenty of regulatory jurisdiction here. Under House Rules, it has authority to investigate the subjects within the Committee’s legislative jurisdiction as well as “any matter” within the jurisdiction of the other standing House committees. And it has legislative jurisdiction over management of government operations and activities (this is, after all, the successor to the old “Government Operations” committee) and federal records management, including the power to regulate national security information. There are limits to Congress’ ability to micromanage presidential information flow, personnel decisions, and secrecy determinations, but those limitations by no means preempt congressional scrutiny. For examples of Congress’ robust role here, see 50 U.S. Code §  3341, various proposals for legislative reform in this area (here and here), or Kel McClanahan’s argument for legislative reform here on Just Security.

A nepotistic Kushner clearance override by President Trump could motivate Congress to pass reform legislation, as could issues related to the Trump White House’s handling of Rob Porter, Michael Flynn, and others.

To be sure, Kushner has due process and reputation interests in his file that should be taken seriously. And the executive branch has an institutional interest in keeping background check information secret so people will serve and be honest on their clearance forms.

But that doesn’t mean that Congress doesn’t have a legitimate oversight interest. And those Kushner and executive branch interests could be safeguarded without defeating congressional access — for example, the White House could offer in-camera access to Kushner’s file.

Moreover, there is ample precedent for congressional investigations into executive branch security practices. House and Senate Republicans made great hay about 21 White House staffers in the Clinton administration who had admitted to prior drug use on their security clearance forms. Cummings’ committee predecessor Rep. Henry Waxman (D-Calif.) investigated potential White House disclosure of Valerie Plame’s undercover status with the CIA.

And let’s not forget the Hillary Clinton email investigation. Republican-led congressional committees investigated her email use under the theory that it could have jeopardized national security. Somehow, that investigation of her practices transformed into an asserted interest in reading the content of the Secretary of State’s emails — a claim most notoriously displayed by Trump publicly calling on Russia to collect and release thousands of Hillary Clinton emails to inject them into the 2016 presidential campaign.

Now, the accommodation process begins in earnest. It appears Cummings’ staff will receive briefings on the White House security clearance process, and then will presumably continue to demand the sought-after documents. At that point, the White House will either give more information or risk a subpoena. Buckle up.

 

Image: U.S. President Donald Trump delivers remarks at the beginning of a meeting with his son-in-law and Senior Advisor Jared Kushner and government cyber security experts in the Roosevelt Room at the White House January 31, 2017 in Washington, DC. (Photo by Chip Somodevilla/Getty Images)

  

About the Author(s)

Andy Wright

Senior Fellow and Founding Editor of Just Security, former Associate Counsel to the President in the White House Counsel’s Office. You can follow him on Twitter @AndyMcCanse.