Recent weeks have seen a fresh round of reports about the White House’s handling of security clearances for President Trump’s son-in-law, Jared Kushner, and daughter, Ivanka Trump. Most notably, multiple news organizations have reported that in 2018 Trump pressured then-Chief of Staff John Kelly and then-White House counsel Don McGahn to approve the clearances over their objections and the objections of career security professionals. After Kelly and McGahn refused, Trump granted the clearances himself. The New York Times wrote, regarding Kushner, that “[o]fficials had raised questions about his own and his family’s real estate business’s ties to foreign governments and investors, and about initially unreported contacts he had with foreigners.”
Rep. Elijah Cummings, Democratic chairman of the House Committee on Oversight and Reform, wasted no time in responding to the reports, pointing to the formal investigation the committee had opened on the White House security clearance process on Jan. 23. But Cummings also noted that “the White House has not produced a single document or scheduled a single interview.” Later, he said of the White House’s response to his requests, “They block us from everything.” According to CNN, this stance is partly the product of new White House counsel Pat Cipollone, who “has taken a more aggressive approach toward congressional requests than his predecessor Don McGahn,” an approach that has included sending sternly worded letters and slow-walking the scheduling of hearing dates and provision of documents.
The oversight committee’s investigation of security clearance practices is far from the only probe the newly Democratic House of Representatives is conducting—nor is it the only one the Trump administration is resisting. But focusing on the security clearance investigation provides a window into how the administration is handling requests for information from a newly combative Congress. This investigation is representative of the push and pull between the legislative and executive branches as Congress exercises its oversight function and of the kinds of issues this oversight function was designed to check. It involves, after all, multiple credible claims of government misconduct, corruption, potential criminal conduct, and potential ongoing national security breaches.
So how has the White House responded to requests from members of the committee for documents and information on security clearances and access to classified information over the past two-plus years? What legal arguments have White House lawyers made to justify not providing the requested documents and information, and are those arguments compelling? Would Congress be justified in moving forward with subpoenas and contempt citations in order to get the information it seeks? What do the White House counsel’s arguments and strategies show about the Trump administration’s views of the constitutional doctrine of executive privilege? And what do they mean for the separation of powers?
What Are the Requests About?
Though the congressional requests gained teeth only after the Democrats took over the House, oversight committee members have been pursuing information about the Trump administration’s handling of security clearances and access to classified information with at least 15 letters over the course of two years. There has been no shortage of material to investigate. Concerns about Kushner’s access to classified information have been the most high-profile issue—but the letters also lay out detailed concerns and request information regarding press reports about security clearance irregularities regarding Trump’s first national security adviser, Michael Flynn (who was fired for lying about contacts with Russians and later pleaded guilty to lying to the FBI) and his son Michael Flynn Jr. (who worked on behalf of foreign governments with his father in the Flynn Intel Group and sought access to classified information even though his duties didn’t warrant it). The committee has also asked for information about alleged classified access irregularities or security incidents involving national security officials in the White House—such as then-National Security Council Senior Director Robin Townley, Staff Secretary Rob Porter, the president’s personal assistant John McEntee, counterterrorism adviser Sebastian Gorka and former Deputy National Security Adviser K. T. McFarland (whose nomination to be ambassador to Singapore was withdrawn after news broke that she had made misleading statements to the Senate Committee on Foreign Relations regarding her communications about Russian contacts).
The letters also seek answers regarding press reports indicating that a significant number of both White House officials and other political appointees in the Executive Office of the President had been working for months with interim security clearances only. They lay out concerns about current members of the White House staff in addition to Kushner, including questions about whether Trump’s second national security adviser, John Bolton, revealed on his security clearance application his work with Maria Butina (who pleaded guilty in December 2018 to conspiring with senior Russian official Alexander Torshin to infiltrate the conservative movement in the United States as an agent of the Russian government).
The letters sent so far are not a comprehensive list of all concerns raised about the administration’s security clearance practices. Outstanding questions remain about why Trump lied publicly about his involvement in granting his daughter Ivanka a security clearance, why other government officials had misgivings about granting her such a clearance, and whether her proximity to the president has played any role in China’s decision to award her at least three trademarks in 2017 and 23 trademarks in 2018 for Ivanka-Trump branded products.
The Trump Administration’s Response
So how has this administration responded to these letters from members of the House oversight committee on the issue of security clearances and access to classified information by White House officials?
The first approach that transition team and White House officials took to letters communicating congressional concerns was simply not to respond.
On Nov. 16, 2016, just days after the presidential election, then-Ranking Member Elijah Cummings sent a letter to then-Vice President-elect Mike Pence pointing to public reporting that Trump “took the unprecedented step of requesting that his son-in-law, Jared Kushner, accompany him to the highly classified President’s Daily Brief, despite the fact that Mr. Kushner holds no security clearance and has undergone no vetting for access to classified national security information.” The letter requested (1) a list of each individual who Trump or the transition team had requested be provided security clearances or applications for security clearances, and (2) a list of any other individuals without security clearances whom Trump or the transition team had proposed giving access to classified information.
Cummings never received a response. He sent at least six additional letters to the transition team and administration over the course of more than two years—on Nov. 18, 2016, June 21, 2017, Dec. 18, 2017, March 6, 2018, March 13, 2018 and Aug. 20, 2018—requesting documents and information following press reports about the Trump team’s approach to security clearances and access to classified information. It is not uncommon for administrations to require that a committee chairperson sign written requests for documents before providing them, but it is somewhat unusual that Cummings and other members of the committee received no written response at all to these letters. Most modern presidential administrations have had at least some concern about being criticized for not responding to congressional letters, even when sent only by the minority.
Notably, the FBI did acknowledge one letter from Cummings to FBI Director Christopher Wray, dated Nov. 16, 2017, in which Cummings requested all documents relating to the “foreign contacts” sections of Michael Flynn Jr.’s security clearance application. The FBI responded that “[a]ny decision to release materials” relating to this inquiry “would be made in consultation with the relevant agency(ies).” This response suggested that the materials existed and that other agencies were involved in the inquiry, prompting Cummings’s Dec. 18, 2017 letter attempting to obtain Pence’s authorization for the FBI to release the documents.
The administration took a second approach to letters from oversight committee members when the requests were either from or co-signed by the committee chairman. In these instances, Trump administration officials replied in ways that either were unresponsive or provided no information about mistakes or misconduct that took place in the past but, rather, articulated goals for improvement going forward. None of the White House letters offered information about the specific incidents or reporting that motivated the committee’s concerns.
On March 22, 2017, then-Chairman Jason Chaffetz and Ranking Member Cummings requested information on whether Michael Flynn had fully disclosed his payments from Russian, Turkish or other foreign sources, including the Kremlin-backed media outlet RT. On April 19, the White House responded by referring the committee to the Department of Defense on some aspects of the request, claiming not to have possession of documents relevant to other parts of the request, signaling that documents responsive to other aspects of the request may be classified, or indicating its view that some of the requested documents were not within the scope of the committee’s investigation.
Chaffetz resigned in 2017. On Feb. 14, 2018, Chairman Trey Gowdy sent letters to Wray and then-Chief of Staff John Kelly regarding the committee’s investigation of the policies and processes by which interim security clearances are investigated and adjudicated with the executive branch and requesting specific information about the adjudication of Staff Secretary Rob Porter’s clearance. Porter had resigned on Feb. 6, 2018, a day after his two former wives accused him in public interviews of physical abuse. Press reporting indicated that Porter had been allowed to continue working with an interim security clearance even after the FBI provided the White House with multiple reports of derogatory information from Porter’s background investigation. Gowdy’s letters pointed to seemingly conflicting statements by Wray and Press Secretary Sarah Huckabee Sanders about whether and when Porter’s background investigation had been completed.
The next day, following press reports that at least 34 White House officials had been working with interim security clearances for 11 months and that more than 130 political appointees in the Executive Office of the President were working with interim security clearances as of November 2017, Gowdy sent another request to the White House seeking information about White House officials working for extended periods with only interim security clearances.
On March 8, 2018, the White House wrote a letter to Gowdy, with Cummings copied, outlining prior administrations’ shortcomings on security clearance issues and attaching a copy of a Feb. 16, 2018 memorandum from Kelly to White House counsel Don McGahn, National Security Adviser H. R. McMaster and Deputy Chief of Staff for Operations Joseph Hagin. Kelly’s memo—which had been made available publicly 10 days earlier—obliquely referenced the Porter revelations. It called on McGahn, McMaster and Hagin to develop a number of reforms to the process, and “effective one week from today” to “discontinue any Top Secret or SCI-level interim clearances for individuals whose investigations or adjudications have been pending since June 1, 2017, or before.” The memo said that Kelly would, going forward, “[l]imit access to certain highly classified information for those individuals with interim clearance status absent explicit Chief of Staff’s office approval, which would be granted only in the most compelling circumstances.”
On April 11, 2018, the Office of the White House Counsel briefed Gowdy and Cummings but apparently refused to provide any backward-looking information about the White House’s security clearance practices. Instead, the briefers provided information only about procedures going forward. Notably, two days later the FBI sent a letter to Gowdy providing information and a timeline about updates the FBI had provided to the White House with derogatory information about Rob Porter. It is not clear whether anyone in the White House approved the FBI’s decision to respond with substantive information on the matter, or if the FBI decided on its own to respond.
Lastly, on Dec. 19, 2018, Cummings sent a letter to Kelly renewing bipartisan and Republican requests for documents from the committee in 2017 and 2018—specifically the letters dated March 22, 2017; Feb. 14, 2018; and Feb. 15, 2018. On Jan. 11, 2019, the White House acknowledged receipt of the Dec. 19 letter but did not provide a substantive response.
In the administration’s third approach, the White House sometimes used the language of accomodation while staking out broad legal arguments and stonewalling on the delivery of substantive answers.
With Democrats newly in control of the House of Representatives, now-Chairman Cummings, in a Jan. 23 letter to White House counsel Pat Cipollone, launched what he termed “an in-depth investigation of the security clearance process at the White House and Transition Team in response to grave breaches of national security at the highest levels of the Trump Administration, including by former National Security Advisor Michael Flynn and others.” The letter specified the goals of the investigation: to “determine why the White House and Transition Team appear to have disregarded established procedures for safeguarding classified information, evaluate the extent to which the nation’s most highly guarded secrets were provided to officials who should not have had access to them, and develop reforms to remedy the flaws in current White House systems and practices.”
The letter requested 14 different categories of documents related to the administration’s treatment of White House security clearances, including White House policies, protocols, and practices related to the security clearance processes; communications with the Trump transition team relating to background investigations and clearances; documents showing which White House officials were granted access to classified information while they were under investigation by law enforcement authorities or who were previously convicted of crimes; documents related to any assessments done by the White House, FBI, or other agency following the revocation, suspension, or denial of an interim or permanent security clearance to determine the national risk or potential exposure of national security information; documents showing the type and amount of classified information accessed by individuals at the White House whose security clearance had been suspended or revoked; documents related to Kelly’s Feb. 16, 2018, memo; and documents related to the background investigations of individuals who had been the subject of prior oversight letters. The letter also requested to begin scheduling interviews of all personnel in the White House Personnel Security Office. Cipollone replied on Jan. 31, and an exchange of an additional four letters followed on Feb. 11, Feb. 25, March 1 and March 4.
In contrast to the prior two years, the White House began responding regularly to Cummings’s letters in 2019. But the White House letters offer little meaningful factual information responsive to the committee’s inquiry. Instead, the letters show the White House taking an absolutist view: that the committee is not constitutionally entitled to meaningful information in the area of security clearances—though the White House cloaks this approach in the language of accommodating Congress. The letters also make no convincing argument that withholding the documents and interviews requested is in the public interest—something administrations typically try to do to justify withholding information.
A close reading of Cipollone’s Jan. 31 reply to Cummings shows the administration’s current strategy. Like prior responses to committee members on the security clearance issue, the letter (1) does not make a claim of executive privilege; (2) does not address any of the factual premises of the committee’s investigation; and (3) contains no meaningful concession or accomodation to the chairman’s request for documents or interviews.
Unlike any of the prior responses, the letter repeatedly uses legal language drawn from the case of United States v. AT&T, which stands for the proposition that in cases involving claims of executive privilege courts will decide the issue only if the executive and legislative branches have tried, in good faith, but failed to reach an accommodation. Cipollone’s short letter of less than two pages contains five references to the administration’s interest in “accommodation” of the committee’s needs. But these references are best understood as preparation for litigation. They are in stark contrast to the substance of the response—which is, in essence, to stake out an absolutist legal position that the president’s plenary authority over national security information and broad discretion in selecting and communicating with his immediate advisers effectively precludes the committee’s interest in access to any meaningful documents or information in this area.
The letter also provides legal arguments in support of the conclusion that Congress has little or no oversight jurisdiction in these issues. In essence, Cipollone relies mainly on assertions of broad legal principles from three court cases—Department of Navy v. Egan, 484 U.S. 518, 528 (1988); Ass’n of Am. Physicians and Surgeons, Inc. v. Clinton, 997 F.2d 898 (D.C. Cir. 1993); and Watkins v. United States, 354 U.S. 178 (1957). On close examination, however, these legal arguments do not convincingly support the White House’s absolutist position.
How Do Prior Claims of Executive Privilege Compare?
In fights with Congress over access to information, it is not unusual for administrations to selectively assert vague legal principles as the basis for broad executive privilege and then try to back up those arguments with case law and other statements that are not directly on point. What is unusual in this case is the near total lack of recognition of any legitimate constitutional role for Congress. In the post-Watergate era, most presidents have generally acknowledged, either explicitly or tacitly, the legitimacy of the role of congressional oversight and the benefits of transparency and oversight. Typically, in asserting executive privilege, administrations argue that some competing public interest overcomes Congress’s interest.
For example, during George H. W. Bush’s presidency, in the face of a House resolution seeking specific information on U.S.-Persian Gulf policy including specific material about Operation Desert Shield, the White House counsel did not attack the legitimacy of the request but, rather, argued that the requests concerned “extremely sensitive information that, if disclosed, could cause grave damage to the national security at this time of crisis in the Persian Gulf region.” See Mark Rozell, Executive Privilege: Presidential Power, Secrecy, and Accountability, University Press of Kansas (2010), at 113. During Bill Clinton’s presidency, after allegations of political influence in the decision-making process of the Department of the Interior in denying an application for a reservation gaming facility, the Office of the White House Counsel did not attack the legitimacy of the committee’s request—rather, it allowed committee staff access to relevant documents, including some the White House viewed as potentially subject to privilege. Rozell at 131-4.
Under the George W. Bush administration, the White House approved the firing of seven U.S. attorneys in December 2006 following a process in which the administration officials charged with making recommendations targeted U.S. attorneys for removal and replacement based not on their work performance but, rather, on their political activities and whether or not they were members of the conservative Federalist Society. In response to congressional investigation of the firing, President Bush eventually asserted executive privilege with respect to communications within the White House on the basis that “for the President to perform his constitutional duties, it is imperative that he receive candid and unfettered advice and that free and open discussions and deliberations occur among his advisors and between those advisors and others within and outside the Executive Branch.” But he did not completely stiff-arm the committee’s request. Even before the issuance of subpoenas, the Justice Department had provided thousands of documents to the relevant committee. The president was also prepared to go further. The White House wrote at the time:
In keeping with the established tradition of Congress and the Executive Branch working together to accommodate each others’ interests, the President was willing to go even further in response to your inquiries. At his direction, we proposed and offered to provide you with documents containing communications between the White House and Department of Justice regarding the request for the resignation of the U.S. Attorneys in question, as well as documents containing communications on the same subject between the White House staff and third parties, including Congress. We also offered to make available for interviews the President’s former Counsel; current Deputy Chief of Staff and Senior Advisor; Deputy Counsel; former Director of Political Affairs; and a Special Assistant to the President in the Office of Political Affairs.
This offer was considered incomplete by the Senate Committee on the Judiciary, which wanted White House officials to formally testify before the committee as well.
In the present case, however, Cipollone neither makes meaningful concessions nor puts forth arguments about what public interest is served by not making concessions. The absolutist argument Trump administration officials are making regarding security clearances looks most similar, in the post-Watergate era, to President Clinton’s arguments relating to his pardons, in 1999, of 16 members of the Puerto Rican nationalist group known as the Fuerzas Armadas de Liberación Nacional Puertorriqueña (FALN)—which Clinton granted despite a prior Justice Department recommendation against such action. Critics alleged that his motives were political and that Clinton was seeking to help his wife Hillary Clinton win a Senate seat in New York by garnering the support of voters of Puerto Rican descent. Rep. Dan Burton, chairman of the House Committee on Government Reform, requested White House and Justice Department documents pertaining to the pardons decision and testimony of key officials involved in the decision process.
Clinton refused, and White House deputy counsel wrote to Burton that “the president’s authority to grant clemency is not subject to legislative oversight.” Rozell at 145. The White House counsel made available some 11,000 pages of documents pertaining to the pardons (such as letters to the White House urging the pardons) but refused to supply any documents that concerned “the president’s internal, deliberative process.” Rozell at 145. Given that the pardon power is an absolute and nondelegable power granted to the president in the Constitution, it was difficult for Congress to make a convincing argument, in the absence of some evidence of bribery, that it was entitled to documents and information about the president’s deliberative process. Rozell at 146. The incoming administration of President George W. Bush agreed and directed his administration to refuse to release documents related to these and other last-minute pardons. Rozell at 167.
As in the Clinton pardons case, Trump has the legal authority to grant security clearances over the recommendations of other government officials. But, whether or not one thinks the pardons incident was resolved appropriately, there are significant differences between the White House’s handling of classified information over the past two years and the Clinton pardons case.
Unlike the pardon power, the power to approve security clearances and make decisions about access to classified information is not a nondelegable function assigned to the president in the Constitution. Most security clearances are considered, issued, rejected and adjudicated by lower-level officials, including in the agencies, as a matter of course. Presidential involvement to approve a clearance, while certainly permitted, is highly unusual—typically presidents are far too busy to be involved in such day-to-day details. And so far, the lion’s share of the committee’s investigation relates not to the president’s involvement or deliberations but, rather, to questionable systems, practices and conduct of a range of lower-level officials in the White House as reported in the press and acknowledged by then-Chief of Staff Kelly in his Feb. 16, 2018, memorandum. It seems likely that there are many documents the administration could produce that would be responsive to the committee’s request but would not implicate decisions made directly by the president. Indeed, there has been substantial confusion about whether the president has been involved at all in these decisions—the president and other White House officials have claimed many, many times that he was not involved in such matters. Trump told Maggie Haberman of the New York Times on Jan. 31, 2019, that he “was never involved with the security …. I don’t want to get involved in that stuff.”
Finally, the scope of executive privilege is subject to a balancing of the competing interests and legitimate needs of the executive and legislative branches. In the Clinton pardons case, the committee’s reasoning for why it needed to see the information was comparatively weak. Today, however, the oversight committee already has a remarkably strong case—thanks to whistleblowers and reporting by the press—to create a compelling showing of need for the documents requested.
The White House counsel’s letters effectively dismiss the notion that Congress has any substantial constitutional interest in the issues raised by the committee and ignore the facts presented by the committee. This absolutist position makes it difficult to see how the committee could propose any accommodation that would meet its needs while accommodating the White House’s position.
Indeed, despite the White House’s assertions that the committee inquiry is too wide ranging and intrusive, the committee has made a strong case for the need to engage in a wide-ranging investigation. If, for example, the relevant known facts showed that mistakes were made in the White House with respect to one security clearance and that problem had been solved in some satisfactory way, then the committee’s Jan. 23 request for documents and interviews could very well be construed as too intrusive and wide ranging. But those are not the facts.
As I discussed in a previous article on Lawfare, disputes between Congress and the president over the scope of executive privilege are better understood as political battles with legal underpinnings—not as pure legal battles to be decided in court. As such, debates over the scope of executive privilege are likely to play out in the context of negotiations between House Democrats and the Trump administration, with each side making political calculations about what fights are worth having, when it makes sense to fight and when it makes sense to cooperate. In other words, each side will have to consider what it can reasonably get away with in the current political environment.
Cipollone’s responses to the committee’s investigation into security clearances and access to classified information suggest that, at this point, the White House has decided that stonewalling is the best political strategy for the president. There are signs that this will be the administration’s across-the-board response to oversight attempts by House Democrats on other subjects: According to information provided by two senior administration officials, the Washington Post reports that the White House has refused to share documents requested in 12 letters from the oversight committee as well as three inquiries from the House Committee on the Judiciary and is “intent on challenging most, if not all, House Democrats’ document requests.”
Traditionally, the standards for asserting executive privilege focus on protecting national security or maintaining secrecy when it is in the public’s interest to do so. Allowing the executive branch to build a dubious case for a more expansive view risks hindering a fundamental principle of proper checks and balances. Abuse of power will follow if the executive branch is allowed to create a norm of secrecy and distrust in its functioning.
It was always clear that Congress would need to commit time and energy to using constitutional tools to vindicate its oversight prerogatives. In view of what we now know about the White House’s current strategy, it seems that obtaining even a fraction of the information Congress seeks will be difficult. The letter-writing phase of this particular investigation has reached its conclusion without much forward progress. If informal negotiations with the White House go nowhere, it would seem the committee will have to either back off this particular inquiry (perhaps prioritizing a more promising inquiry) or else move to the next steps in the process—subpoenas and, if needed, the threat of contempt citations. In the past, such moves have spurred meaningful negotiations with the executive branch. Congress could also look to its other institutional tools to give teeth to its oversight prerogatives, such as delaying confirmation hearings, refusing to move forward on legislation the president needs to achieve his agenda and withholding support for administration programs with the power of the purse. In theory, more extreme measures could follow, such as initiating impeachment proceedings or perhaps even utilizing arcane arrest powers (which exist but aren’t often utilized, as I explained in an earlier piece on Lawfare).
It remains to be seen which tools will work in the current political environment. Whatever its precise next steps, Congress is more likely to be successful if it frames its actions as part of a sustained campaign of support for transparency and accountability in governance. If the legislature is unable to position itself as the proper repository for the American public’s trust on these matters, it risks setting precedents that will erode Congress’s role as a check on the presidency.