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By Chuck Rosenberg, former United States attorney and MSNBC legal analyst
Let’s assume the reporting is correct — that Jared Kushner, President Donald Trump’s son-in-law, applied for a top-secret security clearance and that his application was denied by career officials. Let’s also assume that Trump then, as reported by The New York Times, wanted Kushner to have this clearance because the president believed Kushner needed it to conduct his work. Therefore, Trump simply ordered former chief-of-staff John Kelly to grant Kushner’s top-secret clearance, despite the concerns of career officials and despite the fact that Kushner was not otherwise qualified to be cleared at that level. Is this OK?
Though deeply troubling, a president has the authority to grant security clearances as he prefers. So, the answer to my own question, to paraphrase a former president, depends on what the meaning of “OK” is.
Though deeply troubling, a president has the authority to grant security clearances as he prefers.
The national security apparatus of the United States, including the collection and analysis of intelligence, is established by and for the president. Indeed, the intelligence community (consisting of the CIA, NSA, FBI, and 14 other such agencies, large and small) resides within the executive branch. The president, of course, is the chief executive, of both that branch and the nation. These agencies — and their employees — work for him. That is our constitutional design and, as constructed, it makes good sense.
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Virtually all of a president’s authority with respect to intelligence — to collect, to analyze, to classify, to declassify, and to grant or withhold clearances — is delegated to inferior officials within the executive branch, as it should be. But a president does not need the permission of an inferior executive branch official to act in this arena; ultimately, for instance, a president can classify or declassify intelligence as he sees fit. Broadly speaking, the information is for him to use, after all.
That may seem odd because we think of the work of our remarkably skilled and accomplished intelligence agencies as constituted, authorized and engaged not for a particular individual, but for the safety and security of the nation. True enough, but that protective function is entrusted, by Article II of the Constitution, to the president. A president is, after all, also the commander-in-chief and chief diplomat of the United States. Used properly, intelligence is a crucial tool.
Thus, when our current president shared classified information with Russian officials inside the Oval Office in May of 2017, that was permissible. At the same time, it was remarkably foolish and reckless for many reasons, including the fact that it theoretically put at risk both the source of the information he passed and signaled to our closest allies around the world that we perhaps cannot be trusted with sensitive information they routinely share with us. I can only imagine the reaction among the senior officials in the intelligence services of those allies when our president spilled some number of beans to the Russians. I can assure you, from experience, that they were aghast. I am equally certain the Russians were delighted.
Interestingly, the rules that apply to the president here do not apply to those who work for him. If an inferior officer in a U.S. intelligence agency provided highly classified information to the Russians on his or her own accord (that is, without authorization), there would be serious consequences, ranging from losing a clearance, to losing a job, to going to prison. But, none of that is true for a president. Remember, the information is gathered and analyzed for him and he can essentially do what he wants with it. That includes, it seems, his ability to share it with Russian officials, which is precisely what he did.
Several million Americans hold security clearances. All of them go through a rigorous and laborious process to get one, including a thorough financial and personal vetting. All of them fill out numerous forms, wait many months for their applications to be adjudicated, and submit, in many cases, to polygraph examinations (which they must pass, by the way, to be cleared). I have been cleared through this demanding vetting process several times.
We do this for a reason: to ensure that the men and women who hold clearances and see our most important intelligence can be trusted with it. Overwhelmingly, these professionals maintain that trust. The few scoundrels who do not are typically prosecuted and imprisoned or, as in Edward Snowden’s case, flee to hostile foreign nations where they can live out their lives as cowards and traitors, beyond our reach. And, by the way, which country did Snowden choose? Russia, of course.
The president has the authority to bypass this carefully calibrated system. He may, if he so chooses, grant a clearance to anyone he wants, including his unqualified son-in-law. He may override the recommendation of career officials. He may be as foolish and as reckless as he wants with our nation’s secrets and with the secrets of our allies. That seems like a crazy sentence to write, but it is essentially true.
So, if Kushner is not qualified to hold a top-secret clearance, and the president granted one to him anyway, is that permissible? Yes. But is it OK? No, not even close.