Former CIA Director John Brennan has indicated that he is seriously considering a lawsuit to challenge President Trump’s revocation of his security clearance last week.
He made this clear Sunday on "Meet the Press."
The president tweeted in response: “I hope John Brennan, the worst CIA Director in our country’s history, brings a lawsuit. It will then be very easy to get all of his records, texts, emails and documents to show not only the poor job he did, but how he was involved with the Mueller Rigged Witch Hunt. He won’t sue!”
Brennan would presumably base his legal challenge in part on First Amendment grounds. Last week, Brennan charged that the president’s action was "part of a broader effort by Trump to suppress freedom of speech" and "punish critics." He may also claim that President Trump did not follow established procedures for revocation and appeals laid out in a prior executive order issued by former President Bill Clinton, which technically remains in effect.
Brennan’s continued denunciations of President Trump in print and on television since the revocation of his security clearance completely undercut any notion that his freedom of speech has in any way been diminished, much less suppressed. Moreover, Brennan was not punished for merely voicing his disagreement with President Trump’s policies or even criticizing his character. He recklessly asserted earlier this year that the Russians may have something on President Trump which they are holding over his head. He had no evidence for such an assertion. Even more shockingly, Brennan accused a sitting president of acting in a “treasonous” manner, a capital offense under our Constitution. Like any American, he is free to throw around whatever invectives he wants against President Trump. However, there is nothing in the First Amendment that grants an ex-CIA director accusing the sitting president of treasonous behavior the right to retain his security clearance — a privilege that most Americans do not have in the first place. Brennan’s privileged access to classified information does not outweigh the constitutional authority of the president of the United States to revoke such access if he believes such revocation would be in the interest of national security.
The Supreme Court ruled that the “president’s authority to classify and control access to information bearing on national security” flows primarily from his “constitutional investment of power” as Commander-in-Chief. “It should be obvious that no one has a ‘right’ to a security clearance,” the Supreme Court added.
The impact on Brennan’s financial well-being is irrelevant. The so-called ‘chilling effect’ on other present or former government employees who still have security clearances, which some surmise may prevent them from speaking out for fear of losing their security clearances, is speculative at best. It is also irrelevant because what they fear losing is not an inherent right but a privilege that is within the president’s authority to deny or revoke.
The second legal ground that has been mentioned in support of a challenge by Brennan to President Trump’s revocation decision is that the president did not follow the appropriate procedures laid down by former President Clinton’s prior executive order in determining his access eligibility standards as a covered “employee” (which may include outside consultants, experts, and contractors assisting a government national security agency). These procedures include a right to a detailed explanation, information and documents pertaining to the revocation decision, the right to counsel, the right of reply and the right to appeal to a panel that includes individuals outside the security field.
First of all, there is the fundamental question whether the current president is legally bound by a prior president’s executive order, which the current president can formally revoke at any time. In this case, the Clinton executive order is not explicitly rooted in any specific law or laws as the source of its authority, which weakens its enduring foundation. There is no logical reason why President Trump, in the exercise of his own executive authority, cannot simply ignore it.
Even if President Trump cannot ignore the Clinton executive order altogether where applicable, its procedures for review and appeal of an eligibility decision do not apply to all aspects relevant to the revocation of Brennan’s security clearance. A determination of Brennan’s eligibility for continued security clearance on the basis of his character, conduct, etc., may arguably be subject to the executive order’s procedural protections. However, there is the independent question of whether he has a continuing “need to know” the classified information to which he had been afforded access until last week. Under the terms of Section 5.1 of the Clinton executive order itself, whether an “employee does not have, or no longer has, a need for access is a discretionary determination and shall be conclusive” (emphasis added). The president, as the head of the executive branch, would have the ultimate authority to make such a conclusive discretionary determination under the reasoning of the Supreme Court’s decision discussed above.
Brennan can continue carping all he wants regarding President Trump’s revocation decision. That is his First Amendment right. However, the legal basis for any court challenge he may decide to bring will almost certainly be rejected by the Supreme Court, if it even gets that far.
Joseph A. Klein is a featured author for FrontPage Magazine and the United Nations correspondent for Canada Free Press. He has also authored the books "Global Deception: The UN’s Stealth Assault on America’s Freedom" and "Lethal Engagement: Barack Hussein Obama, the United Nations & Radical Islam." Klein, a Harvard Law school alumnus and practicing attorney, has been a guest on many radio shows as a commentator and has appeared on several TV shows including "Fox & Friends." For more of this reports — Click Here Now.
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