The five people referred to are:
- Former FBI director James B. Comey, fired by President Trump.
- Former director of national intelligence James R. Clapper Jr.
- Former NSA director Michael Hayden
- Former national security adviser Susan E. Rice
- Former deputy FBI director Andrew McCabe, fired this year.
All, to some extent, have been critics of the Trump administration.
“Making baseless accusations of improper contact with Russia or being influenced by Russia against the president is extremely inappropriate, and the fact that people with security clearances are making these baseless charges provides inappropriate legitimacy to accusations with zero evidence,” Sanders said.
In short order, it became obvious that the White House’s “looking” at revoking those clearances hadn’t gotten very far. Both Comey and McCabe lost their clearances as part of the firing process.
“Andrew McCabe’s security clearance was deactivated when he was terminated, according to what we were told was FBI policy,” McCabe’s public spokeswoman Melissa Schwartz wrote on Twitter. “You would think the White House would check with the FBI before trying to throw shiny objects to the press corps.”
“Won’t have any effect on what I say or write,” Hayden wrote.
“This is kind of a petty way of retribution, I suppose, for speaking out against the president,” Clapper said.
When a reporter noted to Sanders that the removal of clearances seemed punitive, Sanders reiterated her statement.
“The president doesn’t like that people are politicizing agencies and departments that are specifically meant to not be political,” Sanders said, “and not meant to be monetized off of security clearances.” When NBC’s Hallie Jackson asked whether Trump had similarly politicized national security, Sanders said he hadn’t.
“When you’re the person that holds the nation’s deepest, most sacred secrets at your hands and you go out and make false accusations against the president of the United States,” she said, “he thinks that is something to be very concerned with and we’re exploring what those options are and what that looks like.”
Those options aren’t especially complicated. There is a detailed process for granting and reviewing clearances established under presidential executive orders, but Trump can sidestep the normal process.
“It is not a right, it is a privilege — and a qualified one at that,” security clearance attorney Sean Bigley said when speaking with The Washington Post by phone on Monday. Those who leave government service often maintain clearance for some time to do things such as work on memoirs, he said.
He noted that the 1988 Supreme Court case Department of the Navy v. Egan determined that the president has the authority to simply revoke an individual’s clearance.
“That really lays out that the president really has essentially unfettered authority to grant or decline to grant the security clearance,” Bigley said. “It is exclusively within the president’s discretion whether to agree to grant or continue a security clearance, and that legal basis is pretty clear from precedent.” It’s similar to the president’s ability to classify and declassify information: He can similarly authorize and deauthorize individuals.
Laura K. Donohue, director of Georgetown’s Center on National Security and the Law, agreed that Trump had the authority to revoke clearances.
“The president, as commander in chief and head of the intelligence agencies, can potentially override anybody’s decision,” Donohue said. “Otherwise you don’t have direction and control as a constitutional matter, and you need to have direction and control in order to have unitary executive.”
Normally someone could appeal the denial of a rejection of their clearance status, potentially setting up a highly political public fight. While noting that the revocation floated by Sanders is in “uncharted territory” — a phrase also used by Donohue — Bigley noted that Trump could simply override an order with one of his own. Or, less dramatically, the head of the agency that granted the clearance could simply deny the ability for the decision to be appealed.
“The director of national intelligence could certify and say, for whatever reason, in this particular case we cannot allow him to have a hearing because it would jeopardize national security in some way, hypothetically,” Bigley said, referring to revoking Brennan’s credentials. “That’s probably how it would play out.”
This also suggests that the assertions made by Sanders about why the clearances might be revoked — politicizing or “monetizing” that status — are irrelevant. Trump could apparently revoke their clearances simply because their first names start with J.
There could be some ramifications to losing clearance. Some former officials still serve on government advisory boards which necessitate certain clearance levels for participation. It’s unlikely, though, to have Trump’s most desired effect: quelling their criticism.
This article was updated with comment from Donohue.