President Trump’s Cronyism and Excesses Should Prompt Security Clearance Reform

The Trump years threaten to become a boiling point for numerous simmering constitutional conflicts, but one of the most innocuous-looking might end up being one of the most important. President Donald Trump’s desire to surround himself with loyalists and punish his detractors without regard to security-driven standards could inadvertently prompt Congress to reshape the landscape over who controls access to national security information. Now the Democratic majority in Congress, led by House Oversight and Reform Committee Chairman Elijah Cummings (D-Md.), is investigating President Trump’s departures from security concerns to a loyalty model, as well as the Trump administration’s noncompliance with existing law.

Last year, Congress passed — and President Trump signed — the SECRET Act, which was designed primarily to impose reporting requirements on the executive branch in the security clearance arena. The act was not a simple knee-jerk response to President Trump, but was instead a response to pervasive problems with the current security clearance regime which had been building for decades, and which the president had simply exacerbated (albeit in a typically explosive fashion). However, Congress stopped short of actually dictating changes to the process, choosing simply to gather information to allow it to get a better understanding of the landscape.

For instance, the law required the National Background Investigations Bureau (NBIB) to report to Congress on the backlog of clearance investigations and to propose a plan for reducing it. Most relevant for this discussion, it also required the White House to “submit to Congress a report that explains the process for conducting and adjudicating security clearance investigations for personnel of the Executive Office of the President, including personnel of the White House Office.” To date, the White House has not done so.

Once sworn in, Chairman Cummings began to pressure the White House on its failure to comply with the SECRET Act. He wrote a letter demanding compliance with the act and asking for records about several specific cases, some of which Cummings didn’t know existed at the time the law was passed. Again, the White House has not complied.

After several weeks of back and forth, during which increasingly damning information was revealed — such as the fact that White House personnel security director Carl Kline had overruled career clearance adjudicators in at least 30 cases to grant clearances to White House personnel — Chairman Cummings sent a demand letter. Four days later, the White House responded. Unsurprisingly, the requested information was not forthcoming.

Instead, the White House letter presented an argument that every administration has made for more than 30 years and that is based on a fundamental misreading of a 1988 Supreme Court case called Department of the Navy v. Egan. The key argument (citing Egan) is as follows:

[I]t is clearly established as a matter of law that the decision to grant or deny a security clearance is a discretionary function that belongs exclusively to the Executive Branch. … The Committee has not cited any legal authority to the contrary, nor explained what legitimate legislative initiative could require the information the Committee seeks. Neither has the Committee provided any constitutional or statutory basis for “develop[ing] reforms … in current White House systems and practices.” The Committee has not explained any potential legislation that Congress could legitimately enact to alter the standards or the process that the Executive Branch follows for granting clearances to the President’s closest advisors in the Executive Office of the President.

The White House counsel later added, “Congress has consistently recognized the President’s exclusive power to make decisions concerning access to national security information.”

The White House counsel’s letter is not an accurate representation of either Egan or of separation of powers doctrine in general. While asserting that Congress has “consistently recognized” the “exclusive power” of the executive branch in access to national security information, the letter rather conveniently omits several glaring instances of Congress taking no account of such objections and passing a law that would not be possible under the White House reading. I have previously written a detailed summary of Congress’s ability to legislate in such matters, and noted constitutional scholar Louis Fisher has written an entire article solely devoted to Egan and its progeny.

As we demonstrate, where Egan is concerned, the executive branch consistently focuses on a stray observation and ignores the actual decision. Egan was about whether or not the Merit Systems Protection Board (MSPB) had the jurisdiction to review the merits of a decision to deny a security clearance. The Supreme Court ruled that it did not because nothing in the enabling statute empowered it to do so. In other words, the MSPB had no authority to make decisions about security clearances because Congress had not given it that authority. This is a far cry from asserting that the Supreme Court “clearly established as a matter of law that the decision to grant or deny a security clearance is a discretionary function that belongs exclusively to the Executive Branch.” And yet, that is the core of the White House’s argument.

The reason for this discrepancy lies in the fact that, in an unfortunate turn of phrase, the Supreme Court observed that the president’s “authority to classify and control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy … [to have] access to such information flows primarily from [a] constitutional investment of power in the President and exists quite apart from any explicit congressional grant.” This language means that any authority the president has in the context of security clearances comes from the Article II Commander-in-Chief authority — itself a non-controversial statement. What it does not mean is that only the president has such authority.

I do not maintain that Congress can pass a law dictating who can and cannot possess a clearance — that ultimate question is up to the president. However, Congress can do everything up to that point, such as establishing safeguards, providing a consistent level of due process, and the like.

Congress could, if it wanted, even state that certain types of people (for instance, people who had been convicted of felonies) could not be given security clearances, as long as it made an allowance for the president to personally overrule the decision. That would be the constitutionally sound version of such a law. Even then, Congress could impose a reporting requirement, such as by saying that the president must make a written finding that it was necessary for national security to give such a person a clearance and inform the intelligence committees of the finding. Since Congress undeniably has the authority to impose such a reporting requirement, it logically follows that it has the right to obtain information about the circumstances in which such overruling decisions have been made, so that it can decide what form, if any, such a reporting requirement should take. That in itself satisfies the legislative purpose requirement that the White House was complaining about in its letter.

History has shown that, when a government lawyer, whose job it is to represent the executive branch, tells President Trump that the longstanding position of the executive branch is that he has the authority to do something, he stops listening and does it. He doesn’t stop to consider the fact (which these lawyers hopefully also try to tell him) that the primary reason the executive branch has been able to take this position has been because neither of the other branches has seen fit to really challenge it.

President Trump’s handling of all matters relating to security clearances and classified information serves as a perfect example of this behavior. His excesses have led us to the current conflict, where Congress, fed up with the flagrant abuse and misuse of his authority in this area, has decided that it is now worth the fight. And it is a fight that the executive branch will ultimately lose, because its position is a bluff.

This federal court decision by Judge Emmet Sullivan both illustrates the inherent fallacy in the White House’s Egan argument and provides a handy list of times Congress and the courts have failed to “consistently recognize the president’s exclusive power”:

If this were the law, the Pentagon Papers case, which allowed the publication of classified material, was wrongly decided. If this were the law, [cases] which require judicial review of pre-publication classification decisions, were wrongly decided. If this were the law, the provision of the Freedom of Information Act that allows judicial review of documents withheld for national security purposes, would be unconstitutional. If this were the law, the provisions of the Classified Information in Prosecutions Act, that require disclosure of classified information to criminal defense counsel, would be unconstitutional. Finally, if the government’s theory of separation of powers carried the day, Youngstown Sheet & Tube Co. v. Sawyer, in [which] the Supreme Court held that the President unconstitutionally assumed the legislative power in the name of national security, was wrongly decided. (Citations omitted).

Judge Sullivan was right then, and Chairman Cummings is right now. As the Government Accountability Office informed Congress yesterday, “Legislation is likely to be necessary in order to effectively address this area.” The Trump White House has provoked Congress into a fight that, for whatever reason, it has generally been reluctant to have, and it is a fight that the White House will lose. And that is a good thing. The time has come for meaningful security clearance reform. The executive branch has squandered its opportunities to do it on its own.

Image: Chairman Sen. Richard Burr (R-N.C.), Vice Chairman Sen. Mark Warner (D-Va.), and Sen. Dianne Feinstein (D-Calif.) listen during a hearing on security clearance reform before the Senate Select Intelligence Committee March 7, 2018 on Capitol Hill in Washington, DC. (Photo by Alex Wong/Getty Images)

 

About the Author(s)

Kel McClanahan

Executive Director of National Security Counselors, a Washington-area non-profit public interest law firm which specializes in national security law and information and privacy law, through which he often represents Intelligence Community employees and contractors. Follow him on Twitter (@NatlSecCnslrs).