High crimes and mental competency don’t keep presidents from security clearances because, they don’t get them

Donald Trump recently became the first U.S. president convicted of a felony. But that doesn’t mean he can’t become president, or access classified information if he does. Unlike the security clearance process, which requires a background investigation and for individuals to have their reliability and trustworthiness judged against 13 adjudicative guidelines, there are just three basic requirements for becoming president: be at least 35 years old, a natural-born U.S. citizen, and live in the U.S. for at least 14 years. Criminal records – or mental competency – are not factors.

Some are surprised to learn that both the president and members of Congress don’t face any type of vetting before being granted access to classified information – it’s born out of their role. And while members of Congress should at least have some form of “need to know” or committee justification for accessing classified information, when it comes to the president, because clearance policy is born out of the executive branch, there are almost no restrictions around what the president can access.

Trump would have lost his carte blanche access when he left office, although former presidents are typically afforded some form of eligibility born out of an advisory role with the prior administration (perhaps a relic of civil discourse from decades past, however). But once the presumptive GOP is nominated at the Republican convention taking place next week in Milwaukee, he is likely to receive the typical intelligence briefing afforded to presidential nominees. 

That is, of course, unless current President Joe Biden decides he shouldn’t. 

The current president’s executive authority would include the ability to restrict access to classified information to a nominee. There is no statutory requirement for pre-inaugural briefings. The custom originated in 1952 (a lot of current clearance process and procedure originated in the 1950s). As a general rule, third party candidates don’t get classified briefings. 

News outlets have reported that the IC plans to continue its precedent of providing classified briefings to the presumptive GOP nominee – despite any ongoing legal issues. But in this case, President Biden holds the trump card – because of his executive branch authority, he could decide not to allow Trump the typical nominee access to classified briefings. 

But with Biden having his own issues with classified information being kept in the wrong place, and his son’s criminal cases, the optics would not be good – and would probably harm the credibility of both the current president and the intelligence community itself. 

In a political climate that only grows more partisan, it’s anyone’s guess how the nominee briefing process could play out. But what no one should be concerned about is a nominee’s access to classified information resulting in major issues or misuse. The pre-presidential briefings are largely analytical discourses, not operational or policy ones. The goal is to keep a nominee informed of the threat landscape they may inherit, and not to give them tools for their stump speech arsenal. And the briefings are limited to the presidential nominee and their vice president. While elected officials are granted access to classified information based on the voting process, their staffs are not.

Just to keep the world of presidential access to classified information interesting, President Biden is facing his own national security crisis following a rambling debate performance, which has led many to question whether he’s experiencing cognitive decline impairing his judgment and ability to lead. 

The president puts a high profile spotlight on a topic already addressed by RAND last year in a study titled “Could Dementia in the National Security Workforce Create a Security Threat?” The report cited the aging federal workforce and the difficulty in diagnosing dementia, and proposed strategies like the regular screening of dementia in the national security workforce.  

Whether it’s Biden, Trump – or my ideal candidate – Secret Squirrel for President – what should be reassuring is that while it’s certainly true that the president wields a high degree of power in the classification process, that power is typically executed by the very cumbersome process of updating executive orders and exercising policy changes. Even more important than the president when it comes to protecting classified information are those national security professionals with the jobs of ensuring it is briefed, stored, and shared properly. 

That doesn’t mean who you vote for doesn’t matter. When electing someone for office, knowing that includes the ability to access classified information should make us think twice about the reliability and trustworthiness of those we send to both Congress and the White House. Elections don’t just establish who will lead the country, but who will take responsibility for its secrets. For the average security clearance holder, it’s a background investigation that holds the key for clearance eligibility. For elected officials, it comes down to the ballot box.

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