Friday, August 17, 2018

Brennan Security Clearance Revocation Spotlights Trump's Peculiar Mixture of Shameless Truth Telling and Bald-Faced Lying

by Michael Dorf

Does President Trump really have the power to revoke the security clearance of former CIA Director John Brennan based on Trump's peeve at Brennan's harsh criticism of Trump's statements, actions, and character rather than any indication that Brennan leaked or otherwise misused classified information? I'm not an expert in national security law, so I'll set aside any statutory or regulatory limits that Trump may or may not have violated. I do think there is a First Amendment problem here, however.

When he was serving on the Massachusetts Supreme Judicial Court, Oliver Wendell Holmes, Jr. famously wrote that a police officer who was fired by the mayor in response to his political canvassing and vote solicitation "may have a constitutional right to talk politics, but he has no constitutional right to be a policeman." Yet modern case law in both the employee speech context and in the broader context of so-called unconstitutional conditions doctrine makes clear that the government's greater power to deny someone a benefit--such as continuing in a job or retaining a thing of value such as a security clearance--does not necessarily entail the lesser power to condition that benefit on refraining from exercise a constitutional right. Thus, even if Trump had the power to revoke Brennan's security clearance based on a discretionary judgment that Brennan no longer needed the clearance, he did not necessarily have the power to revoke it based on Brennan's political speech.

I won't venture a guess whether a lawsuit by Brennan would succeed; numerous doctrines insulate government officials and especially the president from liability for unconstitutional actions; hence, it is possible that Trump's revocation of the security clearance in retaliation for Brennan's speech was unconstitutional but that no judicial remedy is available.

Yet we are still left to marvel at the brazenness of Trump's explanation. Presumably Trump or one of his spokespeople could have given some anodyne explanation. Here's one: Former government officials retain their security clearances in order to facilitate their consultation with current government officials on sensitive national security matters. It was determined, however, that Mr. Brennan is not engaged in such consultation, thus leading to the termination of his clearance.

The official statement (oddly, dated July 26) the administration released did include some language like the foregoing, but it went way beyond that to call out Brennan and warn of additional revocations coming for other former government officials critical of Trump and his administration. Here's what I regard as the key paragraph:
Mr. Brennan has recently leveraged his status as a former high-ranking official with access to highly sensitive information to make a series of unfounded and outrageous allegations – wild outbursts on the internet and television – about this Administration. Mr. Brennan’s lying and recent conduct, characterized by increasingly frenzied commentary, is wholly inconsistent with access to the Nation’s most closely held secrets and facilitates the very aim of our adversaries, which is to sow division and chaos.
Unfounded and outrageous allegations. Wild outbursts on the internet and television. Lying. Facilitating the very aim of our adversaries. Sowing division and chaos. These charges are best read as an exercise in what psychologists would call projection.

Meanwhile, note the slipperiness of that first sentence quoted above. The statement does not say that Brennan has in any way misused the classified information to which he has access or used it for political purposes. It says that Brennan has "leveraged his status, as a former high-ranking official" which, of course, is something he could do just as easily without a security clearance. So Trump is going out of his way to highlight the fact that he is revoking Brennan's security clearance as a punishment for pointed and personal criticism. To similar effect, Trump then told the Wall Street Journal that he revoked the security clearance because of Brennan's role in the "rigged witch hunt," i.e., the Russia investigation.

One almost has to admire the honesty here. Indeed, this level of honesty fits a pattern of what Trevor Noah has called "Truth Trump," a side of Trump's character that occasionally comes out to admit his bad motives. Another recent example is Trump's tweeted claim that he kept Omarosa Manigault Newman on his staff as long as he did despite his perception that she was doing a bad job because "she only said GREAT things about me," as though sycophancy were a qualification that outweighs all flaws. A potentially more consequential example was Trump's admission to Lester Holt in May 2017 that his real reason for firing FBI Director James Comey was the "Russia thing."

Truth Trump presents a puzzle. Trump lies or misleads more than half a dozen times per day, every day, so why would he ever admit facts that place him in a negative light? Let's consider a few factors.

(1) Dementia. Managault Newman apparently contends in her book that Trump has suffered a cognitive decline. That is consistent with the observations of some others, and it may well be right, but it is at best a partial explanation, taken in light of other longstanding character traits of Trump, especially . . .

(2) Narcissism. One can imagine a narcissist who realizes that narcissism is generally regarded as a negative character trait and thus feigns modesty. However, that's not Trump, whose relentless branding of himself and his name over the course of decades shows not even a hint of even false modesty. Thus, when Trump says that he kept Managault Newman on staff simply because she praised him, he apparently does not realize that this looks bad to most normal people.

(3) Dominance. Trump's world view is essentially zero sum. Countries "win" at trade by amassing favorable balances with their trading partners. Others have noted that this is bad economics leading to bad policy. I agree, but that's not my point here. I want to emphasize instead that Trump's tendency to view all relationships in transactional terms and to look for win-lose rather than win-win solutions stems from a deeper character trait: what we might call his will to power.

Josh Marshall, the founder of Talking Points Memo, has written numerous insightful articles explaining Trump through the lens of his will to dominate. Whatever the damage, Trump can sometimes display his dominance over others by accurately describing how he exercised power over them simply to exact revenge or out of spite. That explains the otherwise inexplicable admission to Holt, and it explains his acknowledgment that he revoked Brennan's clearance to punish him. Indeed, we should not properly call these statements admissions or acknowledgments. Seen through the lens of dominance, they are actually boasts.