White House Staff Secretary Rob Porter resigned on Wednesday following revelations that his two ex-wives had made detailed allegations of domestic violence to both the police and the FBI. In the wake of this swift departure, scrutiny has fallen on who at the White House knew what about the accusations and when, with chief of staff John Kelly coming under particular fire for standing by Porter despite his reported knowledge of at least some of the allegations of abuse.
What has perhaps been lost in the inquiry of possible White House foreknowledge is an element of the episode that should be just as troubling: the question of how Porter was able do his job for a full year without permanent security clearance.
Porter was not even the only person in the administration who had apparently been operating for more than a year on temporary security clearance. President Donald Trump’s son-in-law, Jared Kushner, is also reportedly yet to receive his final clearance. Like other White House ethical standards—such as the receipt of foreign emoluments—this administration has evaded historic norms meant to protect the executive branch from possible corruption and prevent the prospect of White House officials being compromised by potential blackmail.
In this case, it has been able to do this for one simple reason: The ultimate arbiter of who in the executive branch is able to handle this country’s most sensitive secrets is one man. That man is Donald Trump. There is nothing preventing Trump from giving top security clearance access to whoever he wants, professional agency adjudication of the normal security-clearance process be damned. Furthermore, there is nobody—aside, perhaps, from Congress—who has oversight over how Trump can issue security clearances. And because this particular Republican Congress has been fully pliant to Trump’s will on all issues surrounding ethical norms, that basically means Trump has untrammeled say over all such clearances. In the cases of Kushner and Porter, it appears that he has all but broken long-standing norms around clearances in a way that seems to have rendered the entire point of the clearance process at the highest levels of government moot. Another example? Former national security adviser Michael Flynn, who ultimately pled guilty to lying to the FBI, was allowed to remain in his job even after the Trump administration had been informed that he might be compromised because of such lies. He resigned only after the lies came to public light.
It is unclear what Porter’s security clearance status was, but it has been widely reported that he did not receive permanent security clearance that would have come from federal vetting. During Wednesday’s press briefing, White House press secretary Sarah Sanders refused to say what that status was. It is highly improbable, however, that Porter was not working on the same kind of temporary security-clearance status as Kushner has been for the past year. “I think it’s impossible to do this job well without security clearance,” Lisa Brown, a former staff secretary in the Obama administration and the current general counsel and a vice president at Georgetown University, told me. “Maybe 20 percent of what goes through the office [would be] classified, if the office [were] structured the way it was in the Obama and Bush administrations.”
“[Virtually] every piece of paper that goes to the president goes through the office,” she added. That includes “a lot” of classified material. Brown noted that there’s a chance that Porter may have been doing his job without reviewing classified materials, delegating that responsibility to more junior officials with full clearance. “[But] it’s hard to see him running the office effectively in that case,” she said. The staff secretary role itself, as executed under previous administrations, requires the person in that position try to ensure that a range of advisers who might have a view on any particular issue have a chance to weigh in. When so many issues at that level involve confidential information, it’s very difficult to fathom the staff secretary not having access to the nation’s top secrets.
For his part, Kelly reportedly worked to ensure that this job was in fact operating in a more traditional way than it had perhaps been prior to his transition to chief of staff. “When John Kelly replaced Reince Priebus as White House chief of staff, Porter’s role expanded,” CNN reported on Wednesday. “Kelly imposed a strict system of information flow to the President, elevating the importance of Porter’s task in managing the documents, news clipping, and briefing books that entered the Oval Office.”
Can independent agencies within the executive branch, such as the FBI, overrule the White House on questions of security clearance? “There’s no real oversight,” national security attorney Bradley Moss told me. Moss works on helping government officials navigate the security-clearance process. He said that ultimately if Congress is compliant, there’s nothing stopping Trump from allowing whoever he wants to work in the White House without final security-clearance approval. The way the process normally works is that an official is given interim security-clearance approval until an investigating agency, likely the FBI, can vet the official for permanent clearance. Interim clearance, though, offers the same exact access to classified information as permanent clearance. “Access is access,” Moss said. “The interim access [though] is only supposed to be there long enough for an agency to finish the vetting.” That vetting process, Moss said, can be as quick as a couple of weeks depending on the circumstances of the individual application.
We know that Kushner has been able to access classified information despite never being granted final clearance, potentially due to questions surrounding misleading information he put on his initial clearance-request forms. Both Porter and Kushner have apparently had this interim clearance for a year, though Moss said, “the interim clearance really isn’t supposed to last longer than somewhere between 90 and 180 days. The agency is supposed to have rendered a decision at that point one way or the other as to whether or not to grant a clearance.”
The enormous loophole in this process is that even if the adjudicating agency decides that someone should not receive security clearance for whatever reason—including that they might be susceptible to blackmail or have committed domestic assault—the president can override that agency’s decision and grant clearance anyway. Additionally, there’s no internal mechanism for making the public aware of possible White House decisions to override security-clearance decisions by the federal bureaucracy. The only way the public might learn about a security-clearance decision being ignored or overridden is through a leak to the press, a waiver signed by the official in question releasing his or her own security clearance status, or perhaps congressional oversight.
Nor does the agency necessarily have to have formally rejected a clearance request for the process to be completely broken, as it appears to now be. The investigating agency can just decide not to grant permanent security clearance to officials, allowing them to remain indefinitely using interim clearance in a sort of limbo state. Again, this would render the entire clearance process effectively moot. An agency might choose to do this if it didn’t want to come into conflict with the head of the executive branch, say by pointing out to a president who has been credibly accused of violence against women that an official who is credibly accused of violence against women should perhaps not have access to this nation’s top secrets. “This [could be] another consequence of having a president who is compromised on issues of sexual autonomy and women,” argued Andrew McCanse Wright, an associate professor at Savannah Law School who was an associate counsel in President Obama’s White House Counsel’s Office and has gone through the clearance process five times. “If the president has no clothes then everyone has no clothes.”
Even if the agency never rendered a verdict on clearance, the official could remain in the position by default indefinitely so long as the White House wanted that. “Given the virtually unlimited discretion they have in terms of granting the interim [clearance] and ultimately adjudicating the final clearance, there’s nothing to have prevented the investigating agency [from letting] this sit on the back burner for months on end hoping that Rob Porter would ultimately leave the administration before they had to make a decision one way or another,” Moss noted.
“[Porter] may well have an interim clearance,” Brown said. “But it feels to me that if that’s the case and you can see anything with an interim clearance, boy we have a loophole in our clearance process.”
One more thing
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