It would be extremely Trump-y if White House deputies ignored POTUS’s order to cancel Brennan’s clearance and just told him that it had been canceled. How would he know unless Brennan himself took to boasting about it on TV?
Which reminds me: Here’s Brennan boasting on TV that he has no reason to believe his clearance has been canceled, as he’s received no formal notification of it. Watch, then read on.
Hallie Jackson wonders in the clip if the White House might be “walking it back,” rescinding the revocation because of the heat Trump’s taken for his decision. Uh, no. Trump would never allow himself to lose face by un-settling a score with a bitter enemy like Brennan under political pressure. He *can* be made to yield and play nice with people he hates when the stakes are low but revoking the clearance of a former director of the CIA because he’s loudly anti-Trump isn’t low stakes. And it’s not unpopular! Brennan claims at one point in passing that “I think everybody believes that the rationale for stripping me of my clearance is bogus.” Is that right? John, I have bad news for you.
He seems to believe two things that aren’t nearly as certain as he’d like them to be, (1) that a clearance can’t lawfully be revoked just because the president dislikes your criticism of him and (2) that there’s a lawful procedure for revoking a clearance that Trump must comply with. The Supreme Court may end up settling the first point, whether the executive can practice viewpoint discrimination in doling out natsec privileges. As for the second, Brennan’s right that there is a procedure that’s typically followed when someone’s clearance is revoked. But that’s like saying that there’s a procedure that’s typically followed when a federal prisoner is pardoned. It may be true, but the Trump era isn’t “typical” politics.
WaPo noted last week that an executive order signed by Bill Clinton and amended 10 years ago lays out a formal process for revocation that requires:
A “comprehensive and detailed . . . written explanation” of the decision.
Notice of their right to be represented by a lawyer at their own expense.
The chance to request “any documents” and reports . . . “upon which a denial or revocation is based.”
A “reasonable opportunity to reply in writing, and request a review” of the decision.
A right to appeal to a “high level panel” appointed by the head of the relevant agency, presumably the CIA in Brennan’s case.
An opportunity “to appear personally” and present materials before “an adjudicative or other authority.”
Trump could revoke the entire executive order, of course, but that would mean eliminating formal procedures for all revocations, not just Brennan’s. The courts might not go along with that as a matter of due process. Apparently there’s a way he could leave the executive order intact while bypassing it in Brennan’s particular case, citing a “national security” exception to the standard procedures (the same way he started his trade war with Canada!), but that would come with a hitch too. Per lawyer Bradley Moss, it would require department heads to ratify the president’s conclusion that letting Brennan keep his clearance would present a national security issue. Is Brennan’s old friend Gina Haspel going to sign off on that?
If all else fails, notes Moss, Trump could try the unitary executive theory — the idea that, as the head of the executive branch, he has final say over who does and doesn’t participate in it, no matter how messy the procedures involved. It’s none of the courts’ business, in other words, how he handles the Brennan matter. If that argument sounds familiar, it’s because it’s the same argument he’ll end up using if he ever chooses to fire Bob Mueller directly rather than insist on Rod Rosenstein or some underling at the DOJ doing it. In the end, the president gets the final say. That’s the lawsuit that’s shaping up between him and Brennan.
Assuming, that is, that Brennan ever gets formal notification that he’s lost his clearance. What if he doesn’t? Until he’s officially had it revoked, he has no standing to sue Trump. In fact, WaPo notes that Sarah Huckabee Sanders’s announcement a few weeks ago that Brennan had lost his clearance didn’t specifically say that it had been revoked; what it said was that the president would “direct appropriate staff of the National Security Council to make the necessary arrangements with the appropriate agencies to implement this determination.” Does that mean Brennan *is* going to end up going through the usual procedure via Clinton’s executive order and just hasn’t been notified yet? Or are they going to handle it some other way?