May 31, 2017

Private: Who Will Take Away the Son-in-Law's Security Clearance?

Caroline Fredrickson, Dan Froomkin, Jared Kushner

by Dan Froomkin and Caroline Fredrickson

As the reported connections between Jared Kushner and the Russian government become more suspicious -- and the possibility that he simply forgot to report those contacts on his security clearance application becomes more remote -- calls are mounting for Kushner's access to the U.S.'s top secrets be suspended.

But who would do that? The granting and revocation of security clearances is the exclusive prerogative of the executive branch, currently headed by Kushner's father-in-law.

So is there anything at all the legislative or judicial branches can do to overrule him?

Do any of the executive-branch entities with control over security clearances have enough quasi-independence to defy the commander in chief's wishes?

Essentially, no. When it comes to security clearances, there is no legal check on a president's power at all. The legislative and judicial branches have no role -- other than possibly creating political pressure to act.

It turns out that many executive-branch powers that most people until recently considered unlikely to be abused are now looking awfully unilateral in the context of a Trump presidency. Control over security clearances is certainly one.

"That is understood to be purely an executive function," said Steven Aftergood, who runs the Project on Government Secrecy at the Federation of American Scientists in Washington and writes the Secrecy News blog.

In fact, the entire apparatus of government secrecy, including classification rules, is the sole preserve of the president. "Like the classification system, it's significant that the structure of the process for granting access to classified information is laid out in an executive order, not in a statute," Aftergood said.

The handful of Democratic members of Congress calling for Kushner's clearance could try to find a legislative way to do it, "but that's a long shot," he said. "Offhand, I don't see a legal way to make that happen. "

And while there are standard operating procedures within the executive branch for the granting and revocation of security clearances, those simply do not apply when the president gives a direct order.

"If the president says 'You need to grant this particular person a security clearance," it's going to get done," said Evan Lesser, president of ClearanceJobs, a web site that connects job candidates with defense contractors and federal agencies.

In fact, Lesser said that given Kushner's foreign connections and his father's criminal conviction of witness tampering, illegal campaign contributions and tax evasion, "if he were not the president's son in law, he probably would not be able to receive a clearance."

"Under normal circumstances, an individual with many foreign connections, extensive foreign travel, multiple foreign business ventures, and substantial finances tied up in foreign banks would likely be denied a security clearance under the presumption of foreign influence," Lesser said.

He added: "The president probably could not receive a security clearance if he was not the president."

As it happens, Trump does not have one, and does not need one; he is vested simply by being in the office.

"We're in uncharted waters here," Lesser said.

Also unprecedented, however, is the number of Trump White House aides whose security clearances have been denied, suspended or revoked for one reason or another – and that we know about it. The process of granting and revoking security clearances is normally opaque.

Trump's first national security adviser, Michael Flynn, had his security clearance suspended in February after being fired for lying about his covert discussions with the Russian ambassador to the U.S.

In February, Politico reported that Robin Townley, one of Flynn's top deputies was denied a clearance by the CIA – with agency director Mike Pompeo's approval.

And Politico reported earlier this month that Adam Lovinger, a Pentagon analyst who Flynn brought into the White House, had his security clearance revoked by Secretary of Defense James Mattis’s chief of staff, Kevin Sweeney.

In addition, six lower-level White House aides resigned or were fired in February after they failed their required background checks.

In a typical White House, many new hires already have security clearances from their previous jobs, from a variety of different agencies – the Department of Defense, most commonly, but also the State Department and others.

But the Trump White House appears to have needed to issue security clearances of its own on a larger scale than usual. That is supposed to get done through Washington Headquarters Services, a little-known office housed inside the Department of Defense that serves many of the White House's administrative functions, including the issuing and adjudicating of security clearances.

Indeed, the conservative Washington Free Beacon pointed out that the letter to Lovinger suspending his security clearance was from Barbara Westgate, the director of Washington Headquarters Services.

The precise status of Kushner's clearance is unknown. The New York Times reported in April that he only had an interim clearance. According to Pentagon rules, that would normally authorize access "to no higher than SECRET classified information. Access to TOP SECRET requires favorable adjudication of completed investigation results." But it is hard to see how Kushner could do his job as a senior adviser without seeing top secret information.

And whether he has undergone -- or is undergoing  -- a full investigation, which would presumably require a full release of all his financial information among other things, simply is not clear.

Lesser said that Trump could simply vouch for Kushner and short-circuit the normal process. And Sheldon Cohen, an attorney who specializes in security clearances, said any adverse decision made by any agency "is subject to the overall authority by the president for security clearances, so he could at any time overrule it."

Presidents normally do not do that, but the normal rules simply do not apply.

"With something of this nature, if it turns out to be substantiated, ordinarily the interim clearance would be suspended until there's a final determination," Cohen said.

"Ordinarily, if it was anybody else, and Congress started getting information of this nature, the security people would jump all over it," he said. "But here you've got the right hand of the president, literally, and the security people are going to be a lot more careful."

Jamie Gorelick, Kushner’s lawyer, has confirmed that Kushner submitted the extensive form required for security clearances, called the SF-86. In fact, he submitted it twice, the first time prematurely, on two consecutive days in January. Aides told the New York Times that Kushner was still compiling the material on the contacts he had with Russians and others during the transition, that he left out of the first two reports.

And although there are no statutory provisions regarding clearances, the U. S. Criminal Code states that knowingly falsifying or concealing a material fact on a form like the SF-86 is a felony.

Rep. Ted Lieu (D-Calif.) has accused Kushner of two federal crimes: lying on his initial SF-86 filing – and then again on the revised one.

The normal procedure for someone suspected of violating their responsibilities as a security-cleared person – for what it is worth – is that adjudication and revocation of access is handled by adjudicators working for the agency that issued the clearance – a job frequently held by contractors.

And normally – again, with average clearance holders – no one else gets a say. "According to current processes, while lawmakers, the public, the media, and others may call for a federal employee’s security clearance to be revoked, it is up to the adjudicators to decide, based on the investigative information provided," Lesser explained.

There are 13 adjudicative guidelines that apply: Allegiance to the United States;  Foreign Influence; Foreign Preference; Sexual Behavior; Personal Conduct; Financial Considerations; Alcohol Consumption; Drug Involvement; Psychological Conditions; Criminal Conduct; Handling Protected Information; Outside Activities; and Use of Information Technology Systems.

But nothing involving the president's son-in-law is nearly so cut and dried.

"The resolution is not likely to be found in the law, but may emerge from political controversy," Aftergood said.

"It wouldn't be legally compelled, but at some point the continued clearance would be untenable in the face of defiance of established rules."