Brennan would face long odds in challenging Trump decision

Brennan would face long odds in challenging Trump decision
© Greg Nash

A lawsuit from former CIA Director John BrennanJohn Owen BrennanEx-CIA chief calls Trump intel shakeup a 'virtual decapitation' of the intelligence community DOJ attorney looking into whether CIA withheld info during start of Russia probe: NYT Federal prosecutor looking into Brennan's role in Russian interference findings: report MORE challenging President TrumpDonald John TrumpWinners and losers from the South Carolina debate Five takeaways from the Democratic debate Democrats duke it out in most negative debate so far MORE's revocation of his security clearance would likely be doomed, legal experts tell The Hill.

While several questioned the wisdom of Trump’s decision to strip clearances from a persistent critic, they said Brennan’s chances of success are exceedingly unlikely.

“This is such an absolute discretionary, executive power and it is a power that is beyond the control of the Congress,” said Robert Turner, a professor who co-founded the Center for National Security Law at the University of Virginia School of Law.


“As a policy matter, pulling the security clearances of former [intelligence community] professionals because they criticize him strikes me as being very unwise. But he is the president, and the Constitution vests that policy decision in his office,” he said.

Jamil N. Jaffer, founder of the National Security Institute at George Mason University’s Scalia Law School, echoed Turner’s claims that the lawsuit likely won’t go anywhere.

“The chances of John Brennan prevailing on the merits of a lawsuit against the president regarding the revocation of his security clearance are vanishingly small,” said Jaffer, a former associate White House counsel to President George W. Bush.

Mark Zaid, a D.C.-based national security lawyer, said Brennan could have a good legal case if the administration refuses to afford him the right to appeal the security clearance decision.

"If he sues to force an internal due process, that he has grounds to pursue and where I think he would prevail," Zaid said. 

People who have their security clearance denied or revoked normally can appeal the decision under an executive order governing access to classified information that was signed by former President Clinton in 1995.

The government typically gives an individual a specific document detailing the reasons why he or she was not granted clearance. From there, the individual can decide to lawyer-up and challenge the decision.

A source close to Brennan said he has not yet received notification as to why his security clearance was revoked and a framework as to how he can appeal that decision. The White House did not respond to a request for comment.

“CIA does not comment on individual security clearances,” a CIA spokesperson told The Hill in a statement.

Even if Brennan gets a chance to appeal the decision, he faces challenges.

Zaid says such cases normally take two to four years to be settled and the chances of the CIA overturning this decision are statistically slim. Even then, the president would still have the final say, making Brennan’s path forward look more like a vertical incline than a slope.

Brennan on Sunday, however, said he is thinking about an appeal to prevent Trump from revoking the clearances of other officials.

“I have been contacted by a number of lawyers and they have already given me their thoughts about the basis for a complaint, an injunction to try and prevent him from doing this in the future,” Brennan told Chuck Todd during a Sunday appearance on NBC’s “Meet The Press.” “If my clearances and my reputation — as I’m being pulled through the mud now — if that’s the price we’re going to pay to prevent Donald Trump from doing this against other people, to me it’s a small price to pay.”

A Supreme Court case, Department of the Navy v. Egan, established the precedent that the president as commander-in-chief has authority to control who has access to national security-related information.

But Ben Wizner, the director of the ACLU’s Speech, Privacy, and Technology Project, said the president’s authority is not limitless: it would be unconstitutional to single out certain groups from receiving or keeping security clearances, he said.

“No one could seriously argue that the president could remove security clearances from everyone who is not Christian. By the same measure, the president cannot remove the security clearance from a critic for voicing his opposition to the president’s policies,” Wizner argued.

Others, however, said revoking the security clearances of critics is different from targeting minority or religious groups.

“The president has absolute authority over who does and doesn’t have classified information. The fundamental qualifier is that he trusts whoever he is giving that to,” said Sean Bigley, an attorney with expertise in security clearance cases.

The move to revoke Brennan’s security clearance was widely seen as an effort by Trump to retaliate against one of his most fervent critics.

Legal analysts say Brennan’s case is unprecedented, marking the first instance of a president unilaterally intervening in a security clearance case of a former, high-level official.

Last week, White House press secretary Sarah Huckabee Sanders listed a handful of other former officials whose security clearances are also under review, many of whom have been critics of the president at some point. 

This includes former Director of National Intelligence James ClapperJames Robert ClapperTrump's nomination of an unqualified DNI undermines bipartisan intelligence reform Free Roger Stone The risk of a politicized national intelligence director MORE, former FBI Director James ComeyJames Brien ComeyBill Barr is trying his best to be Trump's Roy Cohn Comey responds to Trump with Mariah Carey gif: 'Why are you so obsessed with me?' Trump punts on Stone pardon decision after sentencing MORE, former CIA Director Michael Hayden, former Deputy Attorney General Sally YatesSally Caroline YatesGraham requests interviews with DOJ, FBI officials as part of probe into Russia investigation Sally Yates blasts Trump for using DOJ as 'personal grudge squad' Biden: 'I sure would like Michelle to be the vice president' MORE, former national security adviser Susan Rice, former FBI deputy director Andrew McCabeAndrew George McCabeTrump allies assembled lists of officials considered disloyal to president: report Bill Barr is trying his best to be Trump's Roy Cohn Comey responds to Trump with Mariah Carey gif: 'Why are you so obsessed with me?' MORE, former FBI counterintelligence agent Peter Strzok, and former FBI lawyer Lisa Page.

Bruce Ohr, a current Justice Department official with ties to the so-called Steele dossier, also made the list.