Certain institutional norms and customs

Bradley Moss at Lawfare on the taking away security clearances issue:

Trump is considering steps by which their clearances can be revoked because “they’ve politicized and, in some cases, monetized their public service and security clearances,” as well as “ma[de] baseless accusations of improper contact with Russia or being influenced by Russia against the President.” In 11 years of representing civilian employees, military personnel, political appointees and government contractors in security clearance proceedings, I can say with certainty that these types of “allegations” are nothing like anything I have ever seen in a memorandum outlining bases for denying or revoking a security clearance.

As usual with them, it’s not normal, but can they do it? It depends.

There’s a standard process for removing security clearances, which Trump is unlikely to use because “it affords far too much due process for his taste.” Yeah. He prefers to do things as summarily and dictatorially as he can get away with.

What’s more, it would require civil servants at the respective agencies to sign off on the paperwork. I can say with a reasonable degree of confidence that those civil servants would not put their names on a document moving to revoke someone’s security clearance for nothing other than bad-mouthing the president on television or writing a book (both of which are protected activities under the First Amendment, assuming no classified information was disclosed—and there is no evidence that any was, despite complaints from the White House about Comey’s “leaking”).

There’s a national security exception but that would still involve current agency heads’ having to sign off on this “take it away because they say bad things about me” nonsense, and they probably wouldn’t do it.

That leaves the “because I said so” option.

The president could claim the inherent constitutional authority to revoke the clearance eligibility of each of the individuals without any due process. There is no precedent for such an action, as no president (at least as far as I am aware) has ever personally intervened in the clearance revocation (or approval) of an individual. That has never happened before because past presidents—whatever their flaws or scandals—knew there were certain institutional norms and customs that a president simply should not disturb.

Trump, though, is not burdened with an affinity for respecting institutional norms. He already bulldozed those norms when it came to hiring his daughter and son-in-law, refusing to place his assets in a blind trust, and refusing to disclose his tax returns. What is to stop him from running over another norm?

He sees it as part of his awesomeness that he bulldozes all the norms.

If the president were to take this unprecedented exercise of his authority, it is anyone’s guess how the courts would construe the issue. It would set up a serious clash of constitutional questions between the inherent authority of the president regarding classified information, the procedural due-process rights of clearance holders under the Fifth Amendment, and the extent to which the judiciary is even permitted to rule on the matter.

As the president would say, we’ll just have to wait and see.

Due process is for wimps; real men just issue orders.

4 Responses to “Certain institutional norms and customs”