Denying Clinton Classified Briefings May Run Afoul of Presidential Transition Act

Within months of its enactment, the new law aimed at smoothing the presidential transition may be running into its first challenge as a result of the Hillary Clinton email scandal.

House Speaker Paul Ryan, R-Wis., on Wednesday wrote to Director of National Intelligence James Clapper asking that he “refrain from providing any classified information to former Secretary of State Clinton for the duration of her candidacy for president.”

Ryan cited revelations about Clinton’s “carelessness” described by FBI Director James Comey in his July 5 press conference, writing that “there is no legal requirement for you to provide Secretary Clinton with classified information, and it would send the wrong signal to those charged with safeguarding our nation’s secrets.”

On Thursday, Sen. John Cornyn, R-Texas, the majority whip, introduced a bill that would revoke Clinton’s security clearance and those of her colleagues at the State Department “who exhibited extreme carelessness in their handling of classified information.” Cornyn’s Taking Responsibility Using Secured Technologies (TRUST) Act also expresses the sense of Congress that Clinton “should not have access to classified information again until she earns the legal right to such access.”

Clinton, under the new transition law as well as its predecessor laws, would be eligible for security briefings after she is formally nominated at this month’s Democratic National Convention.

Ryan told reporters that he isn’t sure Congress has the authority to revoke the privilege.

Clapper spokesman Brian Hale told Government Executive that the intelligence office has “received the letter and will respond directly to Speaker Ryan.”

 White House press secretary Josh Earnest on Wednesday dismissed Ryan’s request. “We should leave those decisions in the hands of our intelligence professionals,” he told reporters. “They’ll provide the same information to both candidates.”

Rep. Adam Schiff, D-Calif., who serves on the House Intelligence Committee, called Ryan’s request “as predictable as it is absurd.” In a statement Thursday he said, “Providing an intelligence briefing for the party nominees is a sound practice, and is designed both to prepare the candidates for office and to help them avoid representations during the campaign that may adversely affect the national interest before or after election.”

Tony Cordesman, former director of intelligence assessment in the Office of the Secretary of Defense, told U.S. News and World Report that "the U.S. gives background briefings all the time throughout government to people who don't have a security clearance.” But "even if you have a security clearance, there is a wide range of information people won't have access to."

The new transition law contains an array of requirements for the current White House, Office of Management and Budget and agency heads to work with eligible candidates from all political parties during the six months between the conventions and Inauguration Day. For example:

No later than Nov. 1 of a year during which a presidential election occurs, the president or his agents will "negotiate a memorandum of understanding with the transition representative of each eligible candidate, which shall include, at a minimum, the conditions of access to employees, facilities, and documents of agencies by transition staff." To the maximum extent practicable, the memorandum should be based on those from previous presidential transitions, the law says, and “any information or other assistance provided to eligible candidates under this section shall be offered on an equal basis and without regard to political affiliation."

Martha Joynt Kumar, a Towson University political scientist who specializes in presidential transitions, told Government Executive that Hillary Clinton “has not been indicted, nor has she been convicted of anything. The Department of Justice is not going to proceed with the case, so where is the breach of law?”

“Republicans will use many strategies to keep the issue rolling. The law calls for national security briefings for the candidates, and they both will get them,” Kumar said, adding that “the level of security for the candidate briefing is much different than what would be given to a president-elect.”

Ryan has asked Clapper to provide, if he were to reject his request, a rationale for doing so.