Jurisprudence

Less Fair Than the Red Scare

The Eisenhower administration revoking Robert Oppenheimer’s security clearance was bad. What Trump did to John Brennan was worse.

Robert Oppenheimer in front of a chalkboard, and John Brennan testifying before Congress.
Robert Oppenheimer, John Brennan.
Photo illustration by Slate. Photos by Agence France Presse/Getty Images and Alex Wong/Getty Images.

Donald Trump’s use of his authority as commander in chief to punish political opponents is not without precedent, but it does pose a unique challenge to our constitutional system.

Last week, the White House announced that President Trump had ordered that former CIA Director John Brennan be stripped of his security clearance. Trump later explained that the action was intended to punish Brennan for publicly criticizing the president and for providing information to others in the government, which Trump believed led to the appointment of Robert Mueller as special counsel. Trump has threatened to take similar actions against other current and former government officials because of their actual or perceived roles in criticizing Trump or cooperating in the law enforcement investigation of the president.

As extraordinary as Trump’s action against Brennan was, it was not without precedent. Robert Oppenheimer, the father of the atomic bomb, had his security clearance taken away by the Eisenhower administration during the McCarthy era because of his policy views on the advisability of developing a thermonuclear (or hydrogen) bomb.

Yet there is a crucial difference between how the Eisenhower and Trump administrations went about effectuating such political punishments, a difference that goes to the heart of how unique Trump’s exercise of executive power is among presidents of the postwar era. Trump operates with an audacious disregard for even the pretense of due process, a disregard that seems unconstrained by the risks his conduct poses to his own legitimacy as president. In that regard, the contrast between Trump and his predecessors is striking, and the consequences of his conduct for the constitutional order of the nation are difficult to predict.

Oppenheimer was a towering figure in the postwar national defense establishment. After serving as the director of the Los Alamos National Laboratory at the dawn of the Manhattan Project, he went on to play a critical role in the development of the nation’s postwar nuclear weapons policy as an adviser to the Atomic Energy Commission.

In 1954, with Eisenhower’s assent, the commission stripped Oppenheimer of his security clearance. As later became clear, he was targeted by other members of the security establishment, most notably Edward Teller, because of Oppenheimer’s initial hesitancy to endorse the development of a thermonuclear weapon. In an analogy to Brennan’s case, many see this clearance revocation as an attempt to make an example of Oppenheimer and chill others from criticizing continued efforts to increase the size and destructive force of the nation’s nuclear arsenal.

But even during the midst of a national red scare, those seeking to shame Oppenheimer recognized the importance of giving the appearance of fairness and neutral justification. To be sure, that fairness only went so far. When Oppenheimer objected to the loss of his clearance, the commission afforded him a secret hearing in which the government purported to adjudge whether he was actually a threat to national security. The full transcripts of the hearing were kept secret for decades. When they were finally released in 2014, they served to further confirm  that—despite Oppenheimer’s associations with members of the Communist Party—there was no basis for labeling the leader of the nation’s atomic bomb lab a traitor; indeed, a majority of the hearing panel had recognized as much.

Trump’s treatment of Brennan differs from the Eisenhower administration’s action against Oppenheimer in one critical respect: Trump has made no effort to claim that there is anything fair or neutral about the process leading to his revocation of Brennan’s security clearance. To the contrary, Trump is advertising the fact that he is using the denial of security clearances as a means of doling out political punishments to some, with the transparent and unhidden goal of chilling the speech of others, in plain violation of the First Amendment.

Trump’s press secretary expressly linked Trump’s action to Brennan’s critical statements about the president “on the internet and television.” Trump himself confirmed that he was punishing Brennan for his political expression and made plain his eagerness to do the same to others. Furthermore, Trump happily (if inaccurately) observed that former Director of National Intelligence James Clapper may be being “nice” to him in an effort to avoid losing his clearance.

Imposing such governmental sanctions against individuals based upon the content of their speech is subject to the most rigorous First Amendment scrutiny, scrutiny that it rarely survives. And yet, Trump’s unconstitutional action may well be a violation without a remedy.

In the years since the Oppenheimer affair, the procedures for reviewing and denying security clearances have become formalized within each government agency, in accordance with rules and standards set forth in executive orders issued by several presidents. Those procedures are intended to provide individuals whose clearances are subject to challenge procedural due process and the opportunity to demonstrate that they have not violated classification rules or otherwise taken actions that might fairly justify the loss of their clearances.

The courts have recognized a very limited ambit for judicial review of the procedural fairness of an agency’s clearance revocation process. Brennan has yet to have his clearance formally revoked by the CIA; and, as experts in the field have explained, depending upon how his clearance is formally revoked, he may have some basis for a procedural challenge.

But Brennan’s primary objection is not one related to process but rather substance—that is, whether a president can be barred from unconstitutionally directing the revocation of security clearances held by those he considers to be political enemies. And the right to judicial review of clearance determinations generally does not extend to the underlying substantive reasons for a clearance revocation. In its 1988 decision in Department of Navy v. Egan, the Supreme Court held that, by statute, Congress has denied the courts jurisdiction to review the substance of security clearance determinations. In reaching that statutory decision, the court also suggested that there was a constitutional element to its rationale, emphasizing that the president, in his role as commander in chief, is granted broad constitutional authority to make national security determinations.

Egan left unanswered the question presented by Trump’s action against Brennan: whether the courts have jurisdiction to review a president’s decision to strip a security clearance for an unconstitutional reason. Some courts have said no, but the question remains unanswered in the U.S. Court of Appeals for the District of Columbia Circuit, where Brennan may well bring a challenge. As one judge on that court observed in a concurrence to a decision issued in July, immediately after Trump first threatened to remove the security clearances of Brennan and others, “precluding judicial review of constitutional challenges to executive action can itself raise constitutional concerns, even in the area of national security.”

Yet it is far from certain that the Supreme Court will conclude that the authority of the courts to hold a president to account for unconstitutional actions supersedes the president’s broad authority over national security. In its recent decision in the travel ban case, the high court emphasized the president’s similarly broad constitutionally assigned discretion in the area of immigration and refused even to consider the president’s repeated public admissions of discriminatory intent.

Therefore, Trump has good reason to believe that his efforts to exercise executive power free of the constraints of even putative due process are bearing fruit. Furthermore, while scores of former national security professionals are appending their names to letters decrying the president’s efforts to exercise executive authority in a manner at odds with democratic norms, Trump appears utterly untroubled by their criticism. This is because, unlike Eisenhower and all other presidents who have held office during the postwar expansion of executive power, Trump does not seem to be giving any thought to the potential cost to his legitimacy that may arise from acting in a patently unlawful manner.

Now that Michael Cohen has pleaded guilty to what amounts to a criminal conspiracy with Trump, it appears likely that the future of Trump’s presidency will depend upon whether he succeeds in undermining public confidence in the nation’s justice and law enforcement systems, as well as any and all other governmental institutions that Trump perceives as potential adversaries. That is, Trump is likely to enter into increasingly open battle with the constitutional system over which he titularly presides.

If that does come to pass, we can expect Trump to seek out more opportunities to exercise power brazenly and unconstitutionally, repeatedly testing whether he can, or will, be stopped. As audacious as Trump’s security clearance enemies list appears, it may only be the first step in a multipart test of American democracy.