The White House Can Revoke Anyone’s Security Clearance

Sen. Rand Paul made headlines Monday morning by suggesting the White House revoke the security clearance of former CIA Director John Brennan. Paul’s request came just a few days after a Fox News correspondent suggested John Brennan had politicized his security clearance and was using it to attack the White House.

Asked about Paul’s comments, White House Press Secretary Sarah Huckabee Sanders confirmed the president was considering revoking the security clearances of not just Brennan, but also former FBI Director James Comey, former director of the Office of National Intelligence James Clapper, former National Security Advisor Susan Rice, and former CIA and NSA director Michael Hayden.

Paul raised specific questions about Brennan, which are at the heart of the current kerfuffle over former officials and access to classified information: Is Brennan using information he learned in his former role and directly related to national security, to accuse the president of treason, and to promote his cable television commentary? If the government finds grounds to say, yes, he has access to classified information and he is using it in a non-official capacity, there is a precedent for prosecution. But that may not have anything to do with his security clearance.

Because access to classified information is based on need to know, the security clearances of officials such as Brennan and Comey would only be active if they were sponsored by a government agency or contractor that required them to have access. Obviously, they still retain the knowledge of their decades of federal service, but that’s very different from them actively retaining a Top Secret security clearance and wielding it to their personal advantage.

“Typically, senior government officials keep their security clearance eligibility when they leave office, even if they are no longer government employees,” said Evan Lesser, founder and president of ClearanceJobs. “This is done to ensure continuity between administrations, allow former officials to consult government and industry on national security matters, and keep senior people readily available in the event of an emergency. While they may maintain their eligibility, their access to classified information remains based on national security. Ultimately, the president has the power to grant or revoke security clearances to whomever he chooses.”

When it comes to the security clearances of former officials, an exception to need to know does exist—former government officials may be granted access to classified “items that the person originated, reviewed, signed, or received while serving as a Presidential or Vice Presidential appointee or designee” according to Executive Order 13526. The agency head decides which former officials need to retain access, and what form that access takes. That means a clearance revocation would also be more likely to come through their former agencies or executive branch offices versus a White House mandate.

“As former directors of the FBI and CIA, their respective agencies would be the [entities] with the authority to terminate a security clearance,” noted Christopher Burgess, veteran CIA officer and a regular contributor to ClearanceJobs.com. Since the FBI and the CIA fall under the control of the executive branch (and therefore the president), a “request to the current directors of the FBI and CIA would be the mechanism by which I would expect the request to be made, as these individuals do have the ability to summarily terminate access and employment.”

While there is no precedent for a president making a unilateral decision to revoke a former official’s security clearance, former officials have previously been accused of inappropriately maintaining access to classified information following their government employment.

Former CIA Director John Deutch, who served during the Clinton administration, was found to have several incorrectly labeled laptop computers containing classified information in his possession after he was ousted from the agency. Then Attorney General Janet Reno required an investigation into Deutch’s security clearance, and recommended revocation. Deutch pled guilty to a misdemeanor charge of mishandling government secrets. He was later pardoned by Clinton.

A Matter of Semantics

The question of whether or not Brennan and other former White House officials still have security clearances may come down to a matter of semantics. Security clearances are never “given” to individuals—access is granted to specific positions and individuals are vetted for eligibility to access classified information based on their need to know. The term security clearance is used much less frequently in policy than the term “eligibility.” Brennan and other former officials retain their eligibility to access classified information unless a decision to revoke that eligibility is made. Officials would maintain a “current” security clearance for two years after leaving an official government position, assuming their investigation hasn’t expired. But that doesn’t mean they have classified laptops at their homes, or are culling classified information from the NSA unless they have a national security reason or request from the current administration to justify doing so.

Policy aside, when it comes to issues of national security, the White House has a trump card, beyond Trump himself. (And we’re not talking about the president’s Twitter feed).

“Per longstanding Supreme Court precedent, the president’s authority over security clearance matters is both constitutional and plenary. Although there is no known precedent for the action proposed by the White House, nothing legally prevents the president from unilaterally granting, denying, or revoking a security clearance,” said Sean Bigley, national security attorney and managing partner at Bigley Ranish.

Lindy Kyzer is the editor of ClearanceJobs.com and a former Defense Department employee.