Trump revokes security clearance of John Brennan

[Bricker]

@Ravenman

But let’s be clear: the question in either case isn’t the legal power to do something, but the propriety of doing so.

Let’s be clearer: one question raised in this thread IS the legal power:

@Richard_Parker

It isn’t legal. The government cannot take any action, even an otherwise legal action, if the purpose is to dissuade you (and it would work to dissuade a reasonable person) from exercising First Amendment rights.

[Ravenman]

@Bricker

Let’s be clearer: one question raised in this thread IS the legal power:

So you’re content to focus your commentary of this issue to nothing but the question of legality?

No thoughts whatsoever on any other aspect of the controversy?

Well, thank you for the contribution, limited though it may be.

[elucidator]

We cannot truly know what goes on in his mind, in his spirit. I, for one, am profoundly grateful for that fact.

[Bricker]

@Ravenman

So you’re content to focus your commentary of this issue to nothing but the question of legality?

No thoughts whatsoever on any other aspect of the controversy?

No. This is the kind of decision that if Obama had used against a Bush senior official would have produced essentially the exact same rhetoric from the exact same people, simply reversed. The bulk of people condemning Trump would be explaining how the Republicans simply want to see Obama fail, and that a security clearance cannot be used as a sword against the administration that grants it. And the same people now defending Trump would be apoplectic at the politicalization of clearances by Obama.

Either case can be passionately defended. The key is: do you consistently apply a single view, or does your answer change based on the occupant of the Oval Office?

So that’s why I ask about the law. The delivery that dispassionate result. The same action is either legal or illegal, regardless of which President takes it.

[Ravenman]

Seems like there’s only two issues you want to debate here: the issue of legal power and the issue of liberal hypocrisy.

Note that there’s one issue you don’t want to discuss: whether this is good policy.

[Left_Hand_of_Dorkness]

@Bricker

Either case can be passionately defended. The key is: do you consistently apply a single view, or does your answer change based on the occupant of the Oval Office?

That’s almost certainly not the key, since it’s a question that can’t be tested without access to parallel universes–and even if you could test it, you’d learn something about a particular pontificator, not anything about the issue at hand. That is, at best, an interesting idle wonder, and I encourage you to open a thread in MPSIMS to discuss it further.

The legal question is far more interesting. Given your tweak, no, I don’t see how a president would be justified in removing security clearance from an administration critic.

[Bricker]

@Ravenman

Seems like there’s only two issues you want to debate here: the issue of legal power and the issue of liberal hypocrisy.

Proverbs 28:1. Everything I said equally highlights conservative hypocrisy.

Note that there’s one issue you don’t want to discuss: whether this is good policy.

I think that it’s good policy to permit the president to have final review power over clearances, but bad policy to exercise it in this way.

[Budget_Player_Cadet]

@Bricker

No. This is the kind of decision that if Obama had used against a Bush senior official would have produced essentially the exact same rhetoric from the exact same people, simply reversed. The bulk of people condemning Trump would be explaining how the Republicans simply want to see Obama fail, and that a security clearance cannot be used as a sword against the administration that grants it. And the same people now defending Trump would be apoplectic at the politicalization of clearances by Obama.

Either case can be passionately defended. The key is: do you consistently apply a single view, or does your answer change based on the occupant of the Oval Office?

So that’s why I ask about the law. The delivery that dispassionate result. The same action is either legal or illegal, regardless of which President takes it.

First problem: this counterfactual didn’t actually happen. Because this kind of thing doesn’t tend to happen. Really, it’s about as sensible as “If Obama had lied about the size of the crowds at his inauguration, liberals wouldn’t call him on it” - part of the reason he didn’t is because doing something like that is really fucking crazy.

But okay, let’s grant the counterfactual. What if Obama decided to revoke someone from the Bush administration’s national security clearance? Well, what are the circumstances? Did he demand it as part of a purge of people who had insulted him? If that question doesn’t sound bizarre to you, it’s because you have a drastically skewed impression of how normal this is (or a drastically skewed impression of how normal Obama was). It’s simply not a thing you could realistically put him up to.

If you have to dig this hard for a “liberal hypocrisy” point, why bother? Seriously, what’s the point?

[asahi]

@Richard_Parker

It isn’t legal. The government cannot take any action, even an otherwise legal action, if the purpose is to dissuade you (and it would work to dissuade a reasonable person) from exercising First Amendment rights.

Whether any of that can be proven, whether it is worth suing, what the remedy would be, etc., are all of course open questions. But the basic framework of First Amendment retaliation claims is fairly well-settled.

I tend to think Bricker’s correct here.

Legally, in this particular case, the president has the legal authority to Brennan’s security clearance. It’s clearly unethical and raises all sorts of questions, but I doubt it’s illegal or a violation of his First Amendment rights. Brennan can still exercise free speech; he just doesn’t have a security clearance anymore.

[BigT]

You are not discussing the law. You said it doesn’t sound right. That’s not the law. That’s your opinion. If you want to discuss the law, then you would bring up statutes or case law to show that what they say is incorrect, as you have done every other time that a law is wrong.

Instead, you appeal to what we think is proper, which has nothing to do with the law.

[John_Mace]

@Richard_Parker

It isn’t legal. The government cannot take any action, even an otherwise legal action, if the purpose is to dissuade you (and it would work to dissuade a reasonable person) from exercising First Amendment rights.

Whether any of that can be proven, whether it is worth suing, what the remedy would be, etc., are all of course open questions. But the basic framework of First Amendment retaliation claims is fairly well-settled.

@Bricker

This is a pretty solid statement of the law.

But . . . something doesn’t feel right to me.

Imagine Secretary of State Jones. He advocates for peace with Aburjastan. The President wants harsh sanctions, and Jones speaks out, publicly, against the President’s plan.

There’s zero doubt that Jones can be fired, because this is government-as-employer limiting Jones’ First Amendment exercise.

Now, let’s say that Jones is in fact fired. But he retains his clearance until the new SoS can be confirmed, so that he can brief his successor on several ongoing, non-Aburjastan, delicate issues.

But Jones continues to speak out, going on Sunday talk shows and saying, “In the month since I was fired, the classified material I have seen makes an even stronger case for no sanctions against Aburjastan.”

My instinct says that President Smith can react by withdrawing Jones’ clearance.

But that just may be intuition leading me astray.

@asahi

I tend to think Bricker’s correct here.

Legally, in this particular case, the president has the legal authority to Brennan’s security clearance. It’s clearly unethical and raises all sorts of questions, but I doubt it’s illegal or a violation of his First Amendment rights. Brennan can still exercise free speech; he just doesn’t have a security clearance anymore.

This is a tricky question, but once again Trump may have been his own worst enemy. As we saw in the “Muslim/Travel Ban” case, intent can be gleaned from even unofficial utterings, but in this case we have his own press release:

@Trump

Additionally, Mr. Brennan has recently leveraged his status as a former high-ranking official with access to highly sensitive information to make a series of unfounded and outrageous allegations – wild outbursts on the internet and television – about this Administration. Mr. Brennan’s lying and recent conduct, characterized by increasingly frenzied commentary, is wholly inconsistent with access to the Nation’s most closely held secrets and facilitates the very aim of our adversaries, which is to sow division and chaos. More broadly, the issue of Mr. Brennan’s security clearance raises larger questions about the practice of former officials maintaining access to our Nation’s most sensitive secrets long after their time in Government has ended.

I’m not saying with certainty that this makes his action illegal, but I think it opens the possibility for a lawsuit. I doubt one will ensue (pun intended), but it would not surprise me at all if a legal challenge were to be successful, given how things worked out for the first incarnation of the Travel Ban case.

[Left_Hand_of_Dorkness]

If we want to discuss the legality, maybe we should look at what former general counsel for CIA says:

@Jeffrey H. Smith

I believe the president has grossly abused his authority and violated Mr. Brennan’s First Amendment right to speak freely. The president’s actions are therefore unconstitutional and demand a response from Congress.
…
The courts, including the Supreme Court in a 1986 case, have recognized that the president, in the absence of congressional action, has broad authority to establish and oversee the security clearance system and that no one has a “right” to a security clearance. But those cases have been decided largely on procedural grounds, and none has addressed any situation remotely like Mr. Trump’s action against Mr. Brennan.
…
Free political speech is at the very apex of constitutional protections. Disagreement and dialogue are at the heart of our democracy. As Chief Justice William Rehnquist wrote in a 1988 opinion, the Supreme Court has “been particularly vigilant to ensure that individual expressions of ideas remain free from governmentally imposed sanctions.”

It is hard to conclude that Mr. Trump’s actions are anything other than a “sanction” to punish and intimidate Mr. Brennan and others who dare to speak out.
…
I do not know whether Mr. Brennan or others who may have their security clearance revoked by the president will choose to litigate. But if they do, it will be up to the courts to decide whether the First Amendment still matters in the age of Trump.

[Left_Hand_of_Dorkness]

Some more information:

@Aaron Blake

I was on an MSNBC panel Thursday night with Elie Honig, a former federal prosecutor for the Southern District of New York, who suggested Trump’s revocation of security clearances could be construed as retaliation against witnesses. “It’s a federal crime – §1513 if anyone wants to look it up – to retaliate against someone for providing truthful information to law enforcement,” he said. “So he’s getting closer and closer to really dangerous ground here.”

Here’s the text of Section 1513(e):

Whoever knowingly, with the intent to retaliate, takes any action harmful to any person, including interference with the lawful employment or livelihood of any person, for providing to a law enforcement officer any truthful information relating to the commission or possible commission of any Federal offense, shall be fined under this title or imprisoned not more than 10 years, or both.

Honig explained to me Friday that he didn’t necessarily think Trump’s revocation of Brennan’s security clearance would be a violation, given Brennan isn’t a major figure on the probe’s key events. But if he presses on and does it with others, Honig argued, it could.
…
But the question, as with many aspects of the Mueller investigation, is whether the intent clearly stems from the investigation. Trump could certainly argue, in the case of Brennan, that the revocation has to do with the official’s public comments – which was the initial explanation from the White House before Trump muddied it. He could also argue, in the case of Ohr and Comey, that it had to do with actual job performance, rather than their testimony.

[drad_dog]

@Acsenray

I recall hearing an interview a few weeks ago when Trump first brought this up in which it was said that former officials who continue to hold security clearances have them not for their own benefit but because the administration wants the option of keeping them in the loop in case their experience and advice is valuable.

So by doing this, Trump hasn’t punished Brennan but merely denied himself the benefits of Brennan’s informed analysis.

All of the people whose clearance is in question are witnesses against donald. Punishment doesn’t even need to be a motive, and he is being realistic in valuing his present “not being in jail” over whatever national benefit is coming to the US from Brennans insights. Honey Badger don’t care.

[asahi]

With all due respect to the counsels provided as sources, I’m just not seeing it (though I’m open to having my mind changed).

I don’t necessarily see the free speech argument in preserving John Brennan’s security clearance. John Brennan still has free speech rights. The government didn’t take that away from him. They took his security clearance away from him. They might have taken away his ability to find future employment, which may or may not be a separate legal matter that Brennan could fight, but his speech rights weren’t restricted. But how is this any different from the president firing Steve Bannon for being quoted by various outlets for saying things the incensed the president? The government can’t make laws or take action that jeopardize a person’s fundamental ability to speak freely, but speech that is unpopular with a past or potentially future employer can have consequences, and the First Amendment doesn’t protect individuals against those consequences.

With respect to retaliating against a potential witness in a crime, again, I’m just not seeing it. What crime did Trump commit that John Brennan would be a material witness to? He hasn’t even been charged with anything, despite rumblings that he might be charged with obstruction of justice. But considering that Trump’s own tweets potentially reveal criminal intent, potentially anyone who reads his tweets these days is a witness.

All of that aside, I completely agree that revoking security clearances was in retaliation for Brennan’s frank assessment of the president. It’s both unethical and it’s one less voice on matters of national security that we need.

[John_Mace]

@asahi

With all due respect to the counsels provided as sources, I’m just not seeing it (though I’m open to having my mind changed).

I don’t necessarily see the free speech argument in preserving John Brennan’s security clearance. John Brennan still has free speech rights. The government didn’t take that away from him. They took his security clearance away from him.

I was thinking about something along those lines. Keep in mind that Richard Parker noted what the law says (and it would seem Bricker agrees):

@Richard Parker

The government cannot take any action, even an otherwise legal action, if the purpose is to dissuade you (and it would work to dissuade a reasonable person) from exercising First Amendment rights.

So, would Brennan have to show that he changed his behavior after what Trump did, or would he simply have to show that Trump attempted to change his (Brennan’s) behavior? If the former, then I agree the action is legal. But if the latter, then that possibly remains open. Brennan would have a tough time demonstrating that his speech actually was stifled, especially since he publicly stated:

@Brennan

This action is part of a broader effort by Mr. Trump to suppress freedom of speech & punish critics. It should gravely worry all Americans, including intelligence professionals, about the cost of speaking out. My principles are worth far more than clearances. I will not relent.

That sounds to me like he is saying that he is NOT intimidated.

[simster]

@John_Mace

I was thinking about something along those lines. Keep in mind that Richard Parker noted what the law says (and it would seem Bricker agrees):

So, would Brennan have to show that he changed his behavior after what Trump did, or would he simply have to show that Trump attempted to change his (Brennan’s) behavior? If the former, then I agree the action is legal. But if the latter, then that possibly remains open. Brennan would have a tough time demonstrating that his speech actually was stifled, especially since he publicly stated:
That sounds to me like he is saying that he is NOT intimidated.

Whether or not he ‘is’ intimidated - the attempt to squelch him thru intimidation still occurred.

Similar to ‘conspiracy to commit X’ is just as much a crime as ‘committing X’ in many cases?

[Happy_Lendervedder]

@John_Mace

I was thinking about something along those lines. Keep in mind that Richard Parker noted what the law says (and it would seem Bricker agrees):

So, would Brennan have to show that he changed his behavior after what Trump did, or would he simply have to show that Trump attempted to change his (Brennan’s) behavior? If the former, then I agree the action is legal. But if the latter, then that possibly remains open. Brennan would have a tough time demonstrating that his speech actually was stifled, especially since he publicly stated:
That sounds to me like he is saying that he is NOT intimidated.

But maybe it’s not a violation of Brennan’s First Amendment rights per se. Maybe the action of the president is to shut up anyone else that holds security clearances.

“You speak against me? This is what happens. Keep your mouth shut, you’ll keep your clearance.”

Is that the head of government attempting to infringe upon people’s free speech? It seems like it to me.

[drad_dog]

@asahi

With all due respect to the counsels provided as sources, I’m just not seeing it (though I’m open to having my mind changed).

I don’t necessarily see the free speech argument in preserving John Brennan’s security clearance. John Brennan still has free speech rights. The government didn’t take that away from him. They took his security clearance away from him. They might have taken away his ability to find future employment, which may or may not be a separate legal matter that Brennan could fight, but his speech rights weren’t restricted. But how is this any different from the president firing Steve Bannon for being quoted by various outlets for saying things the incensed the president? The government can’t make laws or take action that jeopardize a person’s fundamental ability to speak freely, but speech that is unpopular with a past or potentially future employer can have consequences, and the First Amendment doesn’t protect individuals against those consequences.

With respect to retaliating against a potential witness in a crime, again, I’m just not seeing it. What crime did Trump commit that John Brennan would be a material witness to? He hasn’t even been charged with anything, despite rumblings that he might be charged with obstruction of justice. But considering that Trump’s own tweets potentially reveal criminal intent, potentially anyone who reads his tweets these days is a witness.

All of that aside, I completely agree that revoking security clearances was in retaliation for Brennan’s frank assessment of the president. It’s both unethical and it’s one less voice on matters of national security that we need.

Only trunp knows what crimes Brennan would be a witness to. But every one of these people are in the same category, of being first hand witnesses of the administration at the juncture under investigation. I don’t know if you realize this but domald is becoming a “target” of the investigation if he is not already. This means he is treated differently, and you may not be aware of why. Projecting out from here is impossible. There are no tea leaves to look to to think domald is OK here in August 18.

[John_Mace]

@Happy_Lendervedder

But maybe it’s not a violation of Brennan’s First Amendment rights per se. Maybe the action of the president is to shut up anyone else that holds security clearances.

“You speak against me? This is what happens. Keep your mouth shut, you’ll keep your clearance.”

Is that the head of government attempting to infringe upon people’s free speech? It seems like it to me.

But that’s not how the court system works. Someone, with standing, needs to bring a lawsuit against Trump. I don’t think you or I could make a case that Trump’s actions had some effect on us being able to exercise our 1st amendment rights.