DANIEL VAUGHAN: Does Trump have the power to strip John Brennan of his security clearance?

August 17, 2018

Despite John Brennan’s claims, President Donald Trump’s decision to strip the former CIA director of his security clearance isn’t a fight over the politicization of such clearances.

Brennan is wrong to say the whole ordeal politicizes the security clearance process. Holding a security clearance — and using that knowledge — is already political, and Brennan made it more political through his actions.

It’s one thing to be critical of the administration, and Brennan — and all former government officials — have the right to be. But it’s another thing entirely to imply that your antithetical views toward a current administration are based on your knowledge of classified intel, which Brennan did frequently via Twitter and during TV appearances, where he often alleged (apparently based on classified information) that President Trump should beware Robert Mueller and his probe into the Trump campaign team’s alleged collusion with Russia.

And despite all of Brennan’s bravado on pushing back against Russia and Kremlin interference in U.S. elections, it was his job at the CIA to oversee all U.S. intel efforts to find and stop potential threats. It was his leadership, along with that of the rest of the Obama administration, that continually did nothing in the face of a resurgent Russia.

But putting all that aside, it’s an interesting question of law to ask whether or not Brennan has a legal case against the Trump administration for stripping him of his security clearance.

It seems to me that if Trump can list reasonable reasons for stripping security clearances, he more than likely has the constitutional authority to do so.

But David French, a constitutional lawyer who I usually agree with, made a case in favor of Brennan in National Review. In his piece, he first listed the administration’s public reasons for stripping Brennan of his clearance (more on that in a moment), then offered a counterargument: What if the real reason Brennan lost clearance was due to his speech against the president?

French points to a Wall Street Journal interview President Trump gave in the wake of the Brennan announcement in making his claim.

“I call it the rigged witch hunt, [it] is a sham,” Trump said in the interview. “And these people led it!”

The president added: “So I think it’s something that had to be done.”

I think French is right on his point that if Trump removed Brennan’s clearance solely by political speech, that raises constitutional concerns. French wrote:

If the Brennan decision winds up before the courts, it won’t be enough for the Trump administration to simply cite Article II. It won’t be enough for the Trump administration to merely note that “no one has a right to security clearance.” Administration lawyers will have to grapple with generations of case law not only holding that even members of the military possess First Amendment rights (though those rights are limited by the requirements of service) but also that — as a general rule — government employees and private citizens have a right to protection from government retaliation for the exercise of their First Amendment rights.

Where French and I disagree is in that I don’t think the Trump administration will have to rely on defending itself over Trump’s interviews. I’ll admit the interviews don’t help matters, but I don’t think they’re enough to sink the case.

The line I’d draw on this is that the administration does have a reason for stripping Brennan’s clearance. The Trump team points to two instances — one in 2014 and one in 2016 — when Brennan was required to testify before Congress, and in each situation, he was caught lying.

In 2014, Brennan was asked to testify on whether the CIA, under his leadership, hacked into and spied on congressional staff investigating the CIA’s use of torture. Brennan denied those charges under oath, even though it was a brazen lie. His people had indeed illegally spied on congressional staff and tried to thwart their investigation.

The Washington Post‘s opinion editor wrote a column at the time calling for then-President Barack Obama to fire Brennan for this brazen lie.

And that wasn’t the first time during the Obama administration that Brennan lied about CIA activities. In 2011, he lied about the widespread use of drones.

Finally, Brennan made statements in 2016 on the intelligence community’s reliance on the infamous Christopher Steele dossier that were inaccurate at best.

In short, there was already a case against Brennan well before Trump ever set foot in Washington. And when you combine that evidence with Brennan’s near-constant tirades against Trump, especially his statements suggesting that there are still “other investigative shoes to drop,” it’s easy to provide a rational basis for stripping Brennan of his clearance.

In the end, I think any court will end up weighing the president’s official statements on the firing over his random media interviews.

A court would likely follow a similar logic to that used by the Supreme Court in the cases against Trump’s travel ban and focus on Trump’s official statement — which lists multiple reasons for stripping Brennan’s clearance — to conclude that the president does indeed have such authority.

Brennan beware.

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Daniel Vaughan

Daniel Vaughan is a columnist for the Conservative Institute and lawyer in Nashville, Tennessee. He has degrees from Middle Tennessee State University and Regent University School of Law. His work can be found on the Conservative Institute's website, or you can receive his columns and free weekly newsletter at The Beltway Outsiders. Connect with him on Twitter at @dvaughanCI.