The House Oversight Committee Squeeze on White House Security Practices

Over the last several weeks, the House Oversight and Reform Committee has been busy documenting allegations from a whistleblower who stepped forward to raise concerns about security clearance practices at the White House. On April 1, Rep. Elijah Cummings (D-Md.), the committee’s chair, revealed the cooperation of Tricia Newbold, a security clearance “Adjudications Manager” in the White House Personnel Security Office.

Newbold’s allegations raise troubling questions about White House security practices. Cummings said her version of events outlines “grave security risks.” And her story about disability-based retaliation is downright jawdropping — including moving security files to elevated storage spaces in order to taunt Newbold for her rare form of dwarfism.

But here I focus on the Committee’s fierce and effective response this week to White House counsel Pat Cipollone’s effort to argue that Congress has no legislative or oversight role on security clearances. I critiqued Cipollone’s previous response to Cummings on that score, and now the committee has weighed in with its case for oversight.

Cummings scheduled a business meeting today to authorize subpoenas. That kind of ratcheting escalation is to be expected in light of the White House’s refusal to produce any documents or witnesses in response to the committee’s requests. And Cipollone’s provocative arguments in response to those requests probably hastened the committee’s subpoena schedule.

In my previous article, I challenged Cipollone’s argument that Congress needs to justify each request by pointing to a concrete contemplated legislative act:

[BEGIN] 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. [END]

I then noted that the committee has “plenty of regulatory jurisdiction” over handling of national security information and the security clearance process.

Cummings, unsurprisingly, agrees. In an attachment to Cummings’ new letter to Cipollone, he outlines a laundry list of legislative proposals Congress could consider:

  • Legislation establishing new protocols and procedures for adjudicating security clearances, including legislation requiring audit reports to Congress about the sufficiency of adjudicative summaries created by agencies and offices, including the White House Security Office;

  • Legislation creating or amending criminal penalties for the improper disclosure or possession of national security information, including the disclosure of such information over social messaging services;

  • Legislation requiring risk analyses relating to classified information accessed by officials who were granted interim security clearances but denied permanent security clearances;

  • Legislation generally prohibiting the grant of security clearances to individuals with certain disqualifications;

  • Legislation requiring written notification to Congress if security clearances or access to national security information is granted against the advice of career officials in the White House Security Office, the intelligence community, or senior White House advisors, stating why the clearance was necessary despite countervailing advice, and documenting the process through which the clearance application was adjudicated and how underlying recommendations were overruled;

  • Legislation enhancing interagency coordination and information-sharing regarding security clearance holders accused of wrongdoing;

  • Legislation enhancing criminal penalties for individuals who submit inaccurate information in security clearance applications or other federal forms; and

  • Legislation altering the appropriation of funding to processes underpinning the security clearance system, including background investigation services.

Cummings also notes that executive branch corruption, misconduct, and abuse are also well-established subjects of congressional oversight.

In my prior post — citing Clinton, Bush, and Obama administration precedent — I observed, “There is ample precedent for congressional investigations into executive branch security practices.”

The committee now plans to subpoena former White House personnel security director Carl Kline, who now works as a political appointee at the Department of Defense. In Cummings’ April 1 letter, he cites Bush-era precedent from the committee’s investigation into the public disclosure of Valerie Plame’s covert role as a Central Intelligence Agency officer:

There is clear precedent for Mr. Kline to testify before the Committee. In 2007, the George W. Bush White House made available James Knodell, the Director of the White House Security Office, for public testimony before our Committee.

In addition, in the attachment to his letter to Cipollone — under the heading “Ample Congressional Precedent” — Cummings outlines six episodes ranging from 1996 to 2018 in which the White House has provided documents and witnesses related to White House security clearance practices.

As Cummings notes in his April 1 letter:

The Committee respects the President’s authority to grant security clearances. However, the White House must respect Congress’ co-equal and independent authority to investigate who has been given access to our nation’s secrets, how they obtained that access, the extent to which national security has been compromised, and whether Congress should amend current laws to improve national security and enhance transparency over these decisions.

I concluded my prior piece by noting that the White House would either start accommodating Congress’s information demands or risk as subpoena. Now it looks like this dispute will shift from negotiations in the shadow of a subpoena into a question of subpoena compliance.

Image: Rep. Elijah Cummings (D-Md.) chairs the House Oversight Committee as Michael Cohen, former attorney for President Donald Trump testifies on Capitol Hill February 27, 2019 in Washington, DC.(Photo by Chip Somodevilla/Getty Images)

 

About the Author(s)

Andy Wright

Senior Fellow and Founding Editor of Just Security, Partner at K&L Gates, former Associate Counsel to the President in the White House Counsel’s Office. Follow him on Twitter (@AndyMcCanse).