Does the President Have the Power to Revoke Security Clearances?
Does the President have the power to revoke security clearances held by former national security personnel for any reason at all or no reason?
President Donald Trump recently brought the question to the forefront when, on August 15, he revoked John Brennan’s security clearance.
He also announced that he was considering revoking the security clearances of former members of the national security community that have been sharply critical of him. This growing list includes former FBI Director James B. Comey, who was fired by President Trump; former Director of National Intelligence James R. Clapper Jr.; former National Security Agency Director Michael Hayden; former United States associate Deputy Attorney General Bruce Ohr; former FBI Lawyer Lisa Page; former National Security Adviser Susan E. Rice; former Deputy FBI Director Andrew McCabe, who the President also fired this year; former FBI agent Peter Strzok; and former United States Deputy Attorney General Sally Yates. Comey, McCabe, and Ohr had their security clearances revoked when they were fired.
When announcing the initial list of former officials whose security clearances was under review, White House Press Secretary Sarah Huckabee Sanders explained to the press that the president was considering the action “because [the targeted individuals] have politicized and, in some cases, monetized their public service and security clearances.” She added, “Making baseless accusations of improper contact with Russia or being influenced by Russia against the president is extremely inappropriate, and the fact that people with security clearances are making these baseless charges provides inappropriate legitimacy to accusations with zero evidence.”
You might ask why former national security officials, at least those who were not fired, should retain their security clearances after leaving government service. Generally, these individuals retain a lot of useful knowledge from their time in office, and, if kept in the loop, can continue to advise current security officials, thus aiding in protecting national security. Clapper has described the president’s threats to take away the clearances as “kind of a petty way of retribution.”
So does the president have the power to revoke? And is there any way to appeal that decision on the basis that it violates some standard? The Constitution is silent on the issue. There are procedures for removing security clearances outlined in Executive Orders, but some have argued that the president can circumvent or simply ignore them.
One commentator described retaining a security clearance as a qualified privilege, not a right, and argued that the president has “essentially unfettered authority” to revoke a clearance. The precedent he relied upon is the 1988 Supreme Court case Department of the Navy v. Egan. Egan has been widely cited to support a broad understanding of the President’s constitutional power, but Egan involved the narrow statutory question of whether an Executive Branch entity, the Merit Systems Protection Board, had the authority to review the revocation of a security clearance by the Navy. The revocation cost a low-level employee a job, as he could not retain his position without the clearance. The Court held that Congress had not empowered the Board to conduct such reviews. But the Court stated, in obiter, that “unless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs.”
Since then, courts and government officials have argued that Egan supports the president’s extremely broad, even unfettered discretionary powers in matters of national security. Such an interpretation would support the argument that the president could revoke security clearances for whatever reason. Thus, the matter of whether the security clearance was revoked for political reasons or because the holders had attempted to “monetize” the clearance, such as by writing a tell-all book, would be irrelevant.
There is one other Supreme Court case that is mentioned often and also came from 1988. In Webster v. Doe, the Court held that a Central Intelligence Agency employee who was openly gay and had his security clearance revoked for that reason could argue in District Court that his rights under the Due Process and Equal Protection Clauses had been violated. The Court held that the power to revoke security clearances may be circumscribed by a colorable constitutional claim. This would seem to cut against Egan.
But there are substantial differences between Webster and what the president has threatened to do. First, Webster was a firing and revocation by the Director of the CIA, not the president. Second, the revocation was made pursuant to the director’s statutory authority, which states that he may terminate whenever he deems such termination necessary or advisable in the interests of the United States. This suggests that the right to terminate is not absolute. Third, Doe had received excellent performance ratings, but was terminated when he voluntarily revealed that he was gay, thus triggering constitutional protections.
It will be interesting to see if President Trump’s actions generate a lawsuit, whether that suit can go forward, and whether Egan will serve as sufficient precedent to justify his actions.
