Trump’s Security-Clearance Orders Aren’t a Scandal Yet

(Bloomberg Opinion) -- The news that President Donald Trump’s administration reversed 25 security-clearance denials, as a whistle-blower has now told the House Oversight and Reform Committee, seems outrageous on its surface. For Trump critics, it’s an example of the reckless abuse of executive power over and against the recommendations of the career civil servants who issue clearances.

But those critics should think twice before assuming that the denial of access to the government’s confidential or top secret information is some sort of unassailable judgment that cannot be reversed without bad motives. The clearance process is opaque to the point of being almost undemocratic. Those seeking clearance do not learn the reasoning for the decisions, nor do they have any opportunity to make objections. If you are denied clearance, you never know why — and ordinarily, neither does anyone outside the clearance bubble.

The process is much like a secret trial by anonymous bureaucrats who make subjective judgments on the basis of secret reports. And their decisions are unreviewable — unless the president intervenes, as Trump apparently did on multiple occasions.

The names mentioned Monday by the Washington Post in association with the whistle-blower’s report are the president’s daughter Ivanka Trump; her husband, Jared Kushner; and the national security adviser, John Bolton. The clearance case for each requires independent scrutiny before the results are treated like holy writ.

Trump and Kushner have long records of business dealings with companies from foreign countries, albeit often indirectly. Foreign contacts can make security clearance hard to get. It’s all but impossible to vet every connection abroad — remember that Kushner, who was in the best position to know about them, had to amend his application several times to add omitted meetings.

Yet, the idea that the president’s daughter and son-in-law, who are among his closest advisers, are somehow acting to betray the nation’s confidences ought to require some sort of proof before we assume they should not have been cleared. The couple are under perhaps the closest scrutiny of any presidential advisers in modern American history. If they were to betray U.S. security willfully as a result of foreign blackmail or foreign loyalty, it would be difficult to hide. And the truth is that their webs of business connections are essentially in the public domain.

A process that denied the couple clearance need not have been nefarious to deserve being overturned. The red flags raised by the bureaucratic process might be quite ordinary. Rumor and innuendo could legitimately be part of their dossiers. But Trump and Kushner would not have been informed of the suspicions against them or allowed to refute or explain them. The secretive process of clearance denial cannot be appealed or modified except by presidential intervention. That seems to be exactly what Trump did.

As for Bolton, he served in senior roles in prior Republican administrations, many of which would have required very high security clearances. Several of his earlier jobs required Senate confirmation.

You might disagree with Bolton — I frequently do — but his career has been that of a distinguished public servant. The idea that he somehow ceased to be worthy of being trusted with national secrets during the years he was out service is on its face highly doubtful. Bolton could be wrong about what promotes U.S. national interest and how to get there, but it should not be taken for granted that he is a security risk. Yet Bolton, like Kushner and Trump, would have no way to know the allegations against him and no way to respond.

Another possible red flag for the Trump staffers whose clearance was denied: the investigation by special counsel Robert Mueller into possible coordination with Russia during the 2016 campaign. That investigation is now complete, and Mueller could not conclude that such collusion existed on the part of the Trump campaign.

So for anyone whose clearance was held up by the Mueller investigation, it doesn’t seem so strange now that the president would have approved their applications. Trump was in a strong position to know that his campaign was not colluding. In the case of Kushner, who has now been effectively cleared by Mueller, it also seems retrospectively reasonable that Trump would have overridden a denial on those grounds.

Perhaps we will learn more about more about why all these security denials happened in the first place. Probably, though, we won’t: The secrecy is likely to remain a barrier to their being released even to the oversight committee, much less the public.

Secrecy has its place even in a democracy. National security is a legitimate interest that can justify withholding some information from public distribution.

It does not follow, however, that the clearance process should be regarded as sacrosanct. Anytime government officials can effectively block individuals from service without giving public explanation and without the possibility of recourse, we should treat the process with appropriate skepticism. Maybe Trump acted wrongly in granting clearances where they had previously been denied. But we shouldn’t assume the conclusion — at least not without seeing the evidence.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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