Trump's Security Clearance Revoke: Legal Or Abuse Of Power?

In 2018, news outlets reported that former US President Donald Trump wanted to revoke his predecessor Barack Obama's security clearance. However, Trump refuted these claims on Twitter, stating that he was not considering pulling Obama's national security clearance. That same year, Trump revoked the security clearance of former CIA director John Brennan. While a criminal conviction usually disqualifies someone from a security clearance, a sitting US president has the authority to grant or revoke security clearances as they see fit. Trump's team has also been known to bypass FBI background checks for some of his cabinet picks, instead using private companies to conduct vetting.

Trump's ability to grant security clearance

As president, Donald Trump has the authority to grant security clearances to anyone he chooses. This means that Trump can give security clearances to anyone, regardless of whether they have passed an FBI background check or not. This is because the president has the final authority on who they decide to share intelligence with.

During his first term as president, Trump ordered security clearances to be granted to about 25 people, including his son-in-law Jared Kushner, whose application had initially been denied due to potential conflicts of interest. Trump also gave a security clearance to Sebastian Gorka, his pick for deputy assistant, despite Gorka facing persistent questions about the status of his security clearance and being charged with carrying a gun at an airport.

In 2024, Trump's transition team planned for all political appointees to receive security clearances on the first day of his second term, bypassing FBI background checks until after he was sworn in. This decision was influenced by Trump's deep distrust of the FBI, stemming from the investigation into Russian interference in the 2016 election, which he believed grew out of the FBI's background checks during his first term.

While Trump has the power to grant security clearances, the process of obtaining a clearance typically involves the White House personnel security office relying on an FBI background check to decide whether to grant one. If the initial checks against law enforcement databases uncover no issues, applicants are granted an interim clearance while deeper investigations are conducted, and the clearance is then advanced to a permanent status.

Criminal convictions and security clearance

While it is unclear whether Trump broke the law by revoking security clearances, it is within the president's power to grant and revoke security clearances.

A criminal conviction can put your security clearance at risk, and subsequently your livelihood. Security clearances are issued by the federal government to allow individuals access to classified information. The process can take months or over a year to complete, and clearances must be renewed periodically, depending on the level of clearance.

If you are applying for a job with security clearance and have a past criminal conviction, you must disclose this information. The agency to which you are applying will then determine whether or not the crime precludes you from obtaining security clearance according to their own guidelines. Losing your security clearance can mean losing your job or an inability to advance in your career.

The "Criminal Conduct" criterion in the Adjudicative Guidelines For Determining Eligibility for Access To Classified Information affects security clearance applicants who have been arrested, charged, or convicted of a single serious crime or multiple lesser offences. It also applies to those who have intentionally provided false information on their clearance application forms, who have had illegal drug involvement, or who have been involved in previously unreported crime. Criminal conduct is among the top reasons for security clearance denial.

The "Questionnaire for National Security Positions" (Standard Form 86—SF86) asks if an applicant has ever been charged with a felony offence or any offence involving alcohol, drugs, firearms, or explosives. It also asks if an applicant has been arrested within the past 7 years (10 years for Top Secret clearance), has been subject to court martial or other military disciplinary proceedings, or is currently pending some court action for a criminal charge or offence.

Automatic disqualification for security clearance only applies to those who are unlawful users or addicted to a controlled substance, deemed mentally incompetent by a doctor, or dishonourably discharged from the armed services. If you do not fall into these categories, examiners will look at your criminal history and other factors to determine whether security clearance can be granted. Crimes related to dishonesty, substance abuse, or those that could make a person vulnerable to coercion are the most difficult to overcome.

Mitigating factors in favour of clearance include whether the criminal behaviour was an isolated incident, if the person was pressured or coerced into committing the act, if the charges were dismissed or the person was acquitted, and if there is clear evidence of successful rehabilitation.

Trump's bypassing of FBI background checks

In 2024, Donald Trump's transition team was reportedly planning to bypass FBI background checks for some of his cabinet picks. Instead, they would use private companies to conduct the vetting of potential candidates for administration jobs. This was due to Trump and his allies' belief that the FBI system is slow and plagued with issues that could hinder the implementation of his agenda. Critics also say that the intrusive background checks sometimes turn up embarrassing information that could be used to inflict political damage.

Trump's team's lack of urgency when it comes to vetting individuals for national security positions is consistent with how he handled the transition process after the 2016 election. They were reportedly "ill-prepared" for taking over in 2017, so the current lack of interest in participating in the vetting process is not surprising.

Trump's advisers circulated a memo before the election, urging him to bypass the traditional background check process for some of his appointees. The memo proposed hiring private researchers who could perform background checks more quickly than the FBI.

Some of Trump's picks for roles in his administration could face problems during an FBI background check, which could pose potential hurdles during the confirmation process. For example, Matt Gaetz has been mired in Justice Department and House ethics investigations related to sex trafficking, and Tulsi Gabbard has frequently appeared to take positions favourable to foreign leaders widely considered American adversaries.

While Trump has the final authority on who he nominates and decides to share intelligence with, circumventing background checks would be bucking a long-established norm in Washington. It also reflects Trump's deep mistrust of the national security establishment, which he derides as the "Deep State".

The legality of Trump's actions

The president of the United States has broad powers over the country's national security secrecy system. This includes the authority to read all classified documents, to classify and declassify information, and to oversee the security clearance system. Ultimately, the president decides who has access to classified information.

While a criminal conviction would typically disqualify someone from a security clearance, this does not apply to the president. Presidents are granted access to classified information by virtue of the office they hold, rather than because they meet certain criteria. As such, even if Trump were a convicted felon, this would not prevent him from gaining a security clearance.

However, this power does not extend to revoking the security clearance of former presidents. In 2018, news outlets reported that Trump wanted to revoke Barack Obama's security clearance, but these reports were false. While Trump did revoke the security clearance of former CIA director John Brennan, he did not revoke Obama's.

Trump has also sought to bypass traditional FBI background checks for his cabinet picks, instead using private companies to conduct vetting of potential candidates. This move has been criticised as it could allow individuals with potential national security concerns to assume key roles.

In summary, while Trump's actions regarding security clearances may be legally permissible due to the broad powers of the presidency, they have raised concerns about the potential risks to national security and the integrity of the vetting process.

The consequences of Trump's actions

Donald Trump's actions regarding security clearances have had several consequences, both during his presidency and after leaving office. Here are some key consequences:

• Circumventing established norms: Trump's decision to bypass traditional FBI background checks for his cabinet picks goes against long-established norms in Washington. This move reflects his deep mistrust of the national security establishment, often referred to as the "Deep State." By prioritising speed and efficiency, Trump risks overlooking potential national security concerns and raising questions about the transparency and integrity of his administration.
• Delayed vetting and confirmation processes: By skipping FBI background checks, Trump's team faced delays in the vetting process for key administration roles. This delayed the timing of classified briefings for incoming officials and could have impacted their ability to effectively perform their duties from the start of their tenure.
• National security concerns: Trump's actions have raised concerns about national security. In some cases, individuals with potential conflicts of interest or connections to foreign adversaries were granted security clearances. This includes Trump's son-in-law, Jared Kushner, who received a clearance despite concerns raised by the FBI and CIA about his foreign and business contacts.
• Impact on transition process: Trump's approach to security clearances during his transition period caused delays and concerns. His team missed deadlines to sign agreements with the White House and the General Services Administration (GSA), demonstrating a lack of urgency in addressing national security matters.
• Legal consequences: Trump's handling of classified documents after leaving office led to legal repercussions. While a president typically does not face debriefing or restrictions on access to classified information, Trump faced charges related to his failure to comply with a subpoena regarding these documents.
• Public perception and trust: Trump's actions have likely impacted public trust in his administration. The numerous red flags in his record, including sexual misconduct, financial problems, and extreme ideological views, could influence voters' perceptions of his trustworthiness and commitment to the rule of law.

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