Recently, President Trump admitted he took former CIA Director John Brennan’s security clearance away because of his perceived involvement in the investigation into Russian involvement in the 2016 Presidential election, thus apparently destroying the official White House statement that rationalized the decision while insulting Brennan. On Lawfare, Robert Litt comments on the consequences of Trump’s public pronouncement for the future of the power of the Presidency:
I don’t know whether Brennan intends to challenge the revocation of his clearance in court. There are good reasons not to, including the burdens inherent in litigation and the fact that he likely has little need for the clearance. But if he does, he should have little difficulty persuading a court that his clearance was revoked in retaliation for his exercise of his First Amendment right to criticize the president. That will then squarely present the issue of whether courts are powerless to prevent such abuse of the clearance system—and the result may be that the president’s control over security clearances, long jealously guarded, will have been weakened as a result of one president’s tantrum.
The judicial system, with some exceptions, has shown little favor or deference to the Executive in this Administration, presumably due to the extreme amateurism and probable abuses of power inherent in many of the activities of this Executive. If the courts were to rule against Trump in such a hypothetical suit, the advocates of Executive Power would scream holy hell about the loss of discretion on the part of the Executive, generic – but I think the truth is that using the Executive to persecute political enemies is a far worse problem than a loss of discretion when it comes to security clearances, especially if the courts were to rule in such a way as to criminalize the specific motivation of persecuting an enemy.
But does Brennan himself lean towards or against Executive discretion?
