White House press secretary Sarah Huckabee Sanders walked into the briefing room earlier this month and made an unprecedented declaration: President Donald Trump had decided to revoke former CIA Director John Brennan’s security clearance.
But in the 13 days since Sanders read Trump’s 571-word statement to the press, Brennan hasn’t heard anything from the White House, the CIA or any other representative of the administration. And he’s received no formal notification that his clearance has been pulled.
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“Whether or not my clearances have been stripped, I’m still uncertain about,” Brennan said in an interview Tuesday with MSNBC.
Trump used the power of the presidency to override the long-standing government process for pulling security clearances. Whether he’s implemented a new process to replace the old one is anybody’s guess.
The White House has said little about how it made the determination to revoke Brennan’s clearance other than pointing to what Trump called Brennan’s “erratic conduct and behavior.” Aides have provided few specifics about the team of administration officials that is weighing whether to pull the clearances of the nine other individuals Trump named in his statement, nor have its members outlined the criteria they are using and when the review will be completed.
Some prominent observers have started to wonder aloud whether Brennan’s clearance has actually been pulled yet.
“In any other administration, the words of the president are presumed to have intrinsic actionable meaning — that is, they are themselves policy and agencies will respond to them as such,” said Benjamin Wittes, a Brookings Institution senior fellow and editor in chief of the blog Lawfare. “With this president, there is an almost total disconnect between what the president says in public and the actions of the executive branch.”
He continued, “Therefore, when the president says he is doing something, you have to ask a question that you would never ask with any other president, which is: Is he doing that thing, or is he just saying that he’s doing that thing?”
The president is not known for his follow-through. Many of his proclamations and promises, which are beamed to his supporters in the form of early-morning Tweets or off-handed comments in interviews, eventually fade from view, never to be brought up again after Trump has made a political point. Administration officials are often befuddled by the president’s statements, uncertain how to interpret and implement them.
Trump for example, caught the Pentagon by surprise when he tweeted last year that he was banning transgender troops from serving in the military — and the policy wasn’t implemented for nearly eight months. The president regularly announces, often on Twitter, that the administration is looking into issues that pique his interest, from directing Secretary of State Mike Pompeo to investigate South Africa’s land policies to promising on Tuesday to “address” Google search results for Trump-related news.
In the case of Brennan’s security clearance, POLITICO has repeatedly asked White House officials in recent days whether the clearance has been officially revoked, and none have given a straight answer. A White House spokesman declined to comment on the record. A CIA spokesperson said the agency does not comment on individual clearances.
Since Sen. Rand Paul first broached the subject earlier this summer, Trump has been fixated on revoking security clearances, according to two White House officials, and he has pushed his aides to move quickly on the issue. People close to the president believe the issue resonates with Trump’s conservative base, which is deeply skeptical of the government.
But Trump’s decision to pull Brennan’s clearance set off a firestorm in Washington, with former U.S. national security officials lambasting the move as a politically motivated effort to stifle free speech.
Despite the decision’s controversial nature — and the open question of whether Brennan’s security clearance is still technically in place — many experts say the president does have the power to unilaterally revoke clearances.
“When it comes to the authority to control classified information, all the precedent is on the president’s side,” said Bradley Moss, an attorney who specializes in security clearance law.
In making his decision, Trump ignored a 1995 executive order outlining a detailed process for making determinations about access to classified information. The order mandates that the government provide “as comprehensive and detailed a written explanation” of the rationale for not meeting the criteria to gain access to the country’s most sensitive secrets. Individuals whose access to classified information has been rejected also have the right to appeal the decision in writing and in person.
But because courts often give deference to presidents in this arena, Moss said the president, as head of the executive branch, likely can ignore past executive orders or rewrite them to suit his needs — and circumvent the requirements that he inform Brennan directly and give him an opportunity to appeal.
“To be candid, the clearance realm, like the pardon power, is an area of presidential authority that is largely — although not entirely — without scrutiny,” Moss said. “It is almost entirely unchecked because that’s how it was designed.”
Former officials don’t possess a physical security clearance badge granting them ongoing access to government documents and briefings — so the administration wouldn’t need to confiscate anything from Brennan or the others on Trump’s list. Former high-ranking national security officials have access to classified information on a case-by-case basis if the government needs their expertise.
It’s unclear what guidelines, if any, the administration is using as it determines whether to revoke clearances of the other individuals targeted by Trump, including current Justice Department official Bruce Ohr. The factors included in the government’s current guidelines include allegiance to the United States, personal conduct, alcohol and drug use, and criminal conduct.
Trump has also said he is considering revoking the clearances of former FBI Director James Comey, former Director of National Intelligence James Clapper, former National Security Agency Director Michael Hayden, former national security adviser Susan Rice, former FBI attorney Lisa Page, former Deputy Attorney General Sally Yates, former FBI counterintelligence agent Peter Strzok and former FBI Deputy Director Andrew McCabe, whose security clearance was deactivated after he was fired earlier this year.
The lack of transparency around the process opens up the possibility that other former government officials could have their clearances revoked without being informed by the administration.
Ohr has become one of the president’s most prominent targets amid a campaign by conservatives, who pounced on his relationship with the former British intelligence officer Christopher Steele, to paint him as a key figure in the government’s probe of Russia’s interference in the 2016 election. Trump has said he is considering taking away Ohr’s clearance “very quickly,” a move that experts say would effectively make it impossible for Ohr to do his job.
Brennan has said he is considering filing a lawsuit against the administration over the decision, a move that could test the president’s power to revoke clearances.
“I’m sure Don McGahn is a great lawyer, but he’s not a security clearance, Fifth Amendment, constitutional rights lawyer,” said national security lawyer Kel McClanahan, who argued that Brennan might have a strong case, referring to the White House counsel. “Before he did this, he really needed to talk to a lawyer who knows how security clearances work. This is such an insane, perfect storm of just not talking to your lawyers.”