The Washington PostDemocracy Dies in Darkness

Opinion Trump is attacking the First Amendment again

Sarah Huckabee Sanders said on July 23 that President Trump is "exploring the mechanisms to remove security clearance" for six former intelligence officials. (Video: Reuters)

Never let it be said this administration learns from past losses or takes the Constitution seriously. The Post reports:

President Trump is considering revoking the security clearances of a handful of former officials who have been critical of his rhetoric and actions toward Russia, the White House announced Monday, in a move that immediately prompted claims of political retaliation.
White House press secretary Sarah Huckabee Sanders said the officials being examined are former CIA director John Brennan; former FBI director James B. Comey; former CIA director Michael V. Hayden; former national security adviser Susan E. Rice; former director of national intelligence James R. Clapper Jr.; and former FBI deputy director Andrew McCabe.

Not all these individuals have security clearances. But regardless, the attempt to squelch criticism of the administration based on the content of these ex-officials’ speech is a blatant violation of the First Amendment. “Despite the great latitude given the president in national security matters, and particularly on clearances, this is a new low,” says former White House counsel Norman Eisen. “It is so transparently based upon personal and political retaliation.” He continues, “It brings to mind other Trump classifications found unconstitutional by courts, including on First Amendment grounds, like the first Muslim ban or the Twitter ban. Because of the extreme deference to the executive here, court redress might be tough to obtain — but Trump and team are certainly creating an extremely unflattering evidentiary record.”

It also recalls an embarrassing legal loss in which a federal court instructed Trump not to block people on Twitter based on their political views. In May U.S. District Judge Naomi Buchwald ruled:

Our inquiry into whether the speech at issue is protected by the First Amendment is straightforward. The individual plaintiffs seek to engage in political speech . . . and such “speech on matters of public concern” “fall within the core of First Amendment protection,” Engquist v. Ore. Dep’t of Agric., 553 U.S. 591, 600 (2008) . . . .
Here, the individual plaintiffs were indisputably blocked as a result of viewpoint discrimination. The record establishes that “[s]hortly after the Individual Plaintiffs posted the tweets . . . in which they criticized the President or his policies, the President blocked each of the Individual Plaintiffs” . . .  and defendants do “not contest Plaintiffs’ allegation that the Individual Plaintiffs were blocked from the President’s Twitter account because the Individual Plaintiffs posted tweets that criticized the President or his policies.” The continued exclusion of the individual plaintiffs based on viewpoint is, therefore, impermissible under the First Amendment.

So it should also go with the notion that ex-officials would have privileges revoked because they dare criticize a president. Constitutional scholar Laurence Tribe tells me, “This is probably the clearest and most indefensible of Trump’s First Amendment violations.” He observes, “The idea that it could be covered up vis-à-vis the courts by blanket claims that national security is at issue strikes me as highly implausible.” He continues, “If the president [were] to make individualized findings that one of the officials he seeks to deprive . . . of security clearance has in fact [abused] the privilege of using that security clearance by releasing classified information, that would be another thing. But to take an enemies list of this kind and threaten every member of it the way the president has done makes Nixon’s enemies list look trivial by comparison.”

Follow Jennifer Rubin's opinionsFollow

Constitutional lawyer Joshua Matz, who with Tribe co-authored To End a Presidency: The Power of Impeachment, concurs. “The president properly enjoys great latitude in controlling access to sensitive information, but Trump’s use of that power to retaliate against political critics poses a clear threat to First Amendment values. That is most clearly true to the extent Trump is establishing and acting pursuant to a policy of punishing former officials for protected political speech,” he tells me. He explains that “allowing Trump to allocate security clearance based solely on agreement with his positions will deprive the American people of vital information and analysis. It will also cast a chill far beyond the executive branch, leading some of our most savvy experts to fall silent or speak in whispers for fear of presidential retaliation.”

Trump’s threat is outrageous but not surprising. In threatening to “revoke” NBC’s license, casting the media as the enemy of the people, muzzling scientific panels and attempting to use the U.S. Post Office to punish Amazon for The Post’s coverage (Amazon founder Jeffrey P. Bezos owns The Post), Trump has aligned himself with a raft of illiberal strongmen who have recently won elections in Eastern Europe (and of course Turkey, Russia and other blatantly undemocratic countries).

Rep. Adam Schiff (D-Calif.), ranking member on the House Intelligence Committee, tweets, “Politicizing security clearances to retaliate against former national security officials who criticize the President would set a terrible new precedent. An enemies list is ugly, undemocratic and un-American.” He adds, “Is there no length Trump will not go to stifle opposition? Wake up GOP.” That’s unlikely anytime soon.

Protect Democracy’s Roadmap for Renewal, released on July 4, warned against “threats against critics of the presidency, or government actions that bully private individuals.” The report recommends that legal redress for government retaliation against dissenters be strengthened, a proposal that certainly seems prescient. In the short run, robust criticism from the public and Congress should rebuke the president. Ultimately, however, the country — by ballot or impeachment or demands for resignation — must remove a president whose contempt for the Constitution and disdain for his oath of office know no bounds.

Read more:

Jennifer Rubin: Trump’s economic luck might run out