Eager, but probably not so eager that he’ll nuke all of them at once. Gotta save those revocations for rainy-day news cycles.
I doubted that Trump had held off on Brennan’s nuking until he needed it to distract from the Omarosa news for the simple reason that there really isn’t much “Omarosa news.” All of her recordings are duds. Somehow this person spent months inside the Trump White House recording people secretly and got nothing truly scandalous on tape. (Which may be the real Omarosa “scandal.”) If you believe WaPo, though, it’s true. Trump and his team have been ready to revoke Brennan’s clearance for awhile; this week, with his former apprentice’s book in the news, they finally found an opportune moment.
Inside the West Wing, Trump is eager to move against others on the security clearance review list and could act soon, according to the White House officials, who spoke on the condition of anonymity to discuss internal deliberations.
Trump believes he has emerged looking strong and decisive in his escalating feud with Brennan, the aides said, adding that he shows a visceral disdain for the former CIA director when he sees him on TV…
White House aides confirmed that Trump made his decision weeks ago about Brennan, who serves as an NBC News contributor. Senior advisers, including Sanders, recommended to the president that they announce the action Wednesday amid an onslaught of news coverage from former Trump aide Omarosa Manigault Newman’s new book, which accuses Trump of having made racist remarks, the aides said…
Although advisers cautioned the president that some people on the list — including Comey and McCabe — had already lost their security clearances when they were fired, Trump insisted that they be included anyway, the senior officials said.
You would think they’d want to make this look like something more sophisticated than a pure enemies list, just in case Brennan sues and Trump gets an unfavorable judge. That would mean omitting Comey and McCabe since they have no clearances to begin with and leaving off Michael Hayden, who’s been out of government for nearly 10 years. POTUS would have been better off not announcing a “list” at all, in fact, and instead just announcing revocations piecemeal if and when he decides to do them. That would have made his case against Brennan somewhat stronger: Although everyone would have understood it as politically motivated, he could at least have gone into court and argued that Brennan’s own particular professional deficiencies required extraordinary action. He lied to Congress! He doesn’t deserve a clearance.
But instead POTUS went the enemies list route. It reminds me of his progression on the travel ban, which began with a call during the campaign to bar all Muslims from entering the U.S., was eventually refined for legal purposes to focus on a few particular Muslim countries, then was further refined to include a few non-Muslim countries so that the DOJ could argue in court that the policy wasn’t motivated by religious discrimination. That turned out well for him ultimately but not before a bunch of setbacks in lower courts. Surely he’d win in SCOTUS (if not in the Ninth Circuit) on his power to revoke security clearances willy nilly too, no?
Maybe not, argues David French. It’s true that the president has massive power over national security and that courts typically will defer to him, but not as an absolute rule. He has massive power over the military too but if he tried to bar Muslims from enlisting he’d get nuked on Equal Protection grounds. Brennan’s case is interesting because it’s such a clear case of the president penalizing someone, however mildly, for his political viewpoint. Normally viewpoint discrimination is an absolute no-no under the First Amendment. But since a security clearance is a privilege, not a right, and since POTUS’s natsec power is so enormous, would the Supreme Court really step in to stop him?
Generations of precedent suggest that the president does not possess entirely unreviewable authority over the substance of security-clearance determinations. Though he does enjoy broad discretion, it’s clearly bounded by limits, even if they haven’t yet been fully defined by the courts. One of those limits should be that presidents cannot dispense or revoke the security clearances of private citizens (such as contractors or former government employees) in retaliation for the exercise of constitutionally protected political expression, short of evidence of disloyalty to the United States, instability, or vulnerability to improper influence. A security clearance is not a reward for good political behavior, and treating it as such has negative consequences for American national security. Does anyone doubt that John Brennan would still have his security clearance if his Twitter comments were just as frothy and erratic, but were instead aimed at the so-called witch hunt rather than the Trump administration?
One reason a court might give more thought to a lawsuit by Brennan than everyone expects is that Brennan’s not ultimately the target of the revocation policy. His career’s over already and he has a lucrative future raking in ResistanceBucks as an anti-Trump martyr a la Comey, McCabe, and Strzok. The real targets are randos who’ve worked in government, since departed for natsec jobs in the private sector, and now depend on their clearances for their livelihoods. If Trump can nuke Brennan’s clearance for criticizing him, he can nuke theirs. Should your qualification for a clearance by the U.S. government depend on your political opinions about one man? Should a tea partier with a clearance have had his revoked circa 2010 for criticizing Obama’s tax-and-spend policies? The president’s power to use state privileges to tamp down personal criticism of him would be on a judge’s mind. Which is not to say it’d be decisive.
A bunch of former natsec big-cheeses, among them David Petraeus and Robert Gates, signed a letter yesterday expressing solidarity with Brennan and warning about the so-called chilling effect on other natsec people by revoking his clearance. (“[T]his action is quite clearly a signal to other former and current officials.”) I said yesterday in the McRaven post that I don’t think Trump will care personally if members of the “deep state” start forfeiting their clearances or taking other forms of collective action to protest Brennan’s revocation, but there may come a point if they dig in where yanking clearances becomes more trouble to him politically than it’s worth. Congressional Republicans want to spend the fall talking about the economy, not this. Maybe he’ll end up holding off on any further revocations, trusting that Brennan’s example will encourage the rest of his enemies to keep quiet.
Or maybe not. Exit quotation:
President Trump: “Bruce Ohr is a disgrace… I suspect I’ll be taking [his security clearance] away very quickly”
— Evan Rosenfeld (@Evan_Rosenfeld) August 17, 2018