Why Donald Trump is wrong about revoking security clearance for any reason

US president has threatened to remove security privileges from officials of previous administrations whose views he dislikes

Harry Litman
Thursday 26 July 2018 10:10 BST
'If Trump is brazen enough to make good on his threats, he may well be starting down the road to a judicial rebuke'
'If Trump is brazen enough to make good on his threats, he may well be starting down the road to a judicial rebuke' (AP)

In his threats to revoke the security clearances of former government officials who have criticised his policies, President Donald Trump has again shown his contempt for the rule of law. But this time he has chosen an area in which Supreme Court precedent shows his wrongheadedness.

In recent months, Mr Trump or his surrogates have forcefully pushed the view that so long as he is exercising powers assigned to him by Article II of the Constitution, the president cannot act unconstitutionally. In particular, the US president and his champions claim that for a president (but nobody else under the law), motives do not matter. The only relevant inquiry is whether the conduct falls under an area of constitutional responsibility.

Mr Trump's legal team, for example, submitted a 20-page memorandum to Special Counsel Robert Mueller arguing that since the president has the constitutional power to terminate the inquiry or pardon his way out of it, he cannot obstruct justice by exercising this authority "for any reason."

Harvard Law professor Alan Dershowitz weighed in with a similar view, arguing: "You cannot question a president's motives when the president acts. If a president pardons, that's it. If a president fires, that's it. You can't go beyond an act and get into his motive or into his intent."

Mr Trump's lawyer Rudy Giuliani has claimed that the president, alone among US citizens, cannot be subpoenaed or indicted while in office.

This royalist mind-set underlies Mr Trump's arrogation of the power to revoke the security clearances of former officials, and Mr Trump critics, such as former CIA director John Brennan and former director of national intelligence James Clapper. The basic view that presidential motives in a move such as this would not matter is not only wrong; it is also outlandish.

The view would legitimise any number of plainly unlawful and unconstitutional presidential actions - for example, ordering the Justice Department to prosecute only African American defendants or imposing a religious test for eligibility for a Cabinet post.

Sarah Sanders: Donald Trump considering revoking Comey security clearance due to ‘politicising’ and ‘monetising’ his clearance

The contemplated revocation of security clearances offers an instructive example of why the Trumpian motive-doesn't-matter outlook is legally untenable. The power to determine access to classified information rests securely and solely with the president; it is no less absolute than the power to pardon.

Moreover, Congress has passed laws authorising the CIA director, a member of the executive branch, to revoke security clearances "whenever he shall deem such termination necessary or advisable in the interests of the United States." Such a legal standard sounds close to the constitutional standard that team Mr Trump is advancing: All the director need do is "deem" a termination advisable; motives would appear not to matter.

In 1988, the Supreme Court considered the provision regarding the CIA director's authority in Webster v. Doe, a case brought by a former CIA employee who alleged that his security clearance had been revoked because he was gay. The court might have been expected to hold that the power to revoke lay in the unreviewable discretion of the executive branch.

But that isn't what happened. Chief Justice William Rehnquist, a proponent of strong executive power, joined the majority in holding that Congress had foreclosed statutory claims. Yet the justices also specified that Congress, notwithstanding the authorisation law's exceptionally broad language, hadn't foreclosed "colourable constitutional claims" - claims that the revocation of the former CIA employee's security clearance violated the due process and equal protection clauses and his right to privacy.

The plaintiff's claims on constitutional grounds hinged on the alleged motive of executive-branch actors: discharging the employee because of his sexual orientation. The court's confirmation that there were legitimate constitutional matters at stake implies that the otherwise lawful exercise of executive-branch powers can violate the Constitution if the executive has a constitutionally improper motive.

Justice Antonin Scalia was the lone dissenter in Webster, but his dissent reaffirmed the principle. Scalia disagreed about whether Congress had intended to foreclose judicial review of even constitutional claims. But like the majority, he recognised their existence. Scalia wrote that the CIA director "does not have the authority to dismiss in violation of the Constitution, nor could Congress give it to him."

He provided the following example: "An action for backpay by a dismissed Secretary of State claiming that the reason he lost his Government job was that the President did not like his religious views - surely a colourable violation of the First Amendment."

Scalia, the avatar of conservative thought and presidential power, understood what the current administration does not: Motive matters. If Trump is brazen enough to make good on his threats to revoke the security clearances of officials of previous administrations whose views he dislikes, he may well be starting down the road to a judicial rebuke that amounts to a historic condemnation of his conduct in office.

The Washington Post

Join our commenting forum

Join thought-provoking conversations, follow other Independent readers and see their replies


Thank you for registering

Please refresh the page or navigate to another page on the site to be automatically logged inPlease refresh your browser to be logged in