Although a New York Times report this week that President Donald Trump forced a senior White House official to grant Jared Kushner a top-secret security clearance has led to widespread outrage, particularly from former intelligence and national security officials, experts largely agree the president is mostly free to grant clearances as he sees fit.
“He has the authority to give out any level of access he wants, absent impeachment or the 25th amendment,” Bradley Moss, a Washington national security lawyer told Yahoo News.
The Times report said White House chief of staff John Kelly was so disturbed by Trump’s order that he wrote a contemporaneous memo-to-the-file to document it.
Moss, who has written about Trump’s past exercises of power involving clearances, has concluded that employees have some measure of due process if a clearance is revoked — but if Trump wants to offer information to an adviser, he has carte blanche to do so.
Even if Congress were to choose to investigate and attempt to reform the law on executive authority over security clearances — a task the House Oversight Committee and House Intelligence Committee have already committed to —lawmakers may be unable to challenge Trump’s authority. It’s a question that’s never previously been considered, outside academic hypotheticals, says Moss.
“I’m not even sure Congress can change it, as the authority arguably is inherently the creation of Article II” of the Constitution, wrote Moss.
“Congress can decide whether people have private causes of action to sue if they lose clearances (Congress has never done so), Moss wrote, but what lawmakers can’t do is tell the president he can’t grant top-secret access to anyone he chooses.
Some members of Congress, including Sen. Mark Warner of Virginia, the ranking member of the Senate Intelligence Committee, have focused on the problem of clearances writ large: a painfully slow process that has resulted in a massive backlog for federal employees. But tackling the actual authority to grant clearance is another matter.
Trump derives his ability to dole out clearances using the “exact same authorities” that allow him to unilaterally declassify information, says Andrew Bakaj, a Washington attorney for the Compass Rose Legal Group and a former intelligence officer who served in the CIA’s Office of the Inspector General.
“The president is the ultimate deciding official in this area,” he told Yahoo News.
These questions were last raised in earnest when President Trump shared highly sensitive details about a terrorism threat with Russian officials in the Oval Office. While Trump didn’t “declassify” that information per se, experts largely agreed his authority to share information as he pleases would survive challenge — though it might deter allies from sharing key details about sources and methods in the future.
Jared Kushner with Donald Trump through the years
Jared Kushner with Donald Trump through the years
NEW YORK CITY, NY - OCTOBER 14: (L-R) Donald Trump, Donald Trump Jr. and Jared Kushner attend Quest and Q Magazines Host Ivanka Trump Book Party at Trump Tower on October 14, 2009 in New York City. (Photo by Patrick McMullan/Patrick McMullan via Getty Images)
NEW YORK, NY - MARCH 09: Jared Kushner, Ivanka Trump and Donald Trump attend the COMEDY CENTRAL Roast of Donald Trump at the Hammerstein Ballroom on March 9, 2011 in New York City. (Photo by Jeff Kravitz/FilmMagic)
NEW YORK, NY - MARCH 28: (L-R) Donald Trump, Ivanka Trump, Jared Kushner, Bonnie Brooks and Ivana Trump attend LORD & TAYLOR Launches IVANKA TRUMP's Spring 2012 Collection at Lord & Taylor on March 28, 2012 in New York City. (Photo by Patrick McMullan/Patrick McMullan via Getty Images)
NEW YORK, NY - MAY 9: Ivanka Trump, Donald Trump, Chiu-Ti Jansen, Jared Kushner attend YUE MAGAZINE Gala Launch Party Hosted by JARED KUSHNER & CHIU-TI JANSEN at the Atrium at Trump Towers on May 09, 2012 in New York City (Photo by- MIREYA ACIERTO/Patrick McMullan via Getty Images)
NEW YORK, NY - NOVEMBER 8: Donald Trump and Jared Kushner attend the The New York Observer- Masters of Real Estate at The Metropolitan Club on November 8, 2012 in New York City. (Photo by Mireya Acierto/Patrick McMullan via Getty Images)
NEW YORK, NY - MARCH 14: (L-R) Donald Trump, Mayor Michael Bloomberg and Jared Kushner attend The New York Observer 25th Anniversary at Four Seasons Restaurant on March 14, 2013 in New York City. (Photo by Paul Bruinooge/Patrick McMullan via Getty Images)
NEW YORK, NY - APRIL 1: (L-R) Jared Kushner, Donald Trump, Lara Spencer and David Haffenreffer attend The New York Observer's New Look Hosted by Jared Kushner and Joseph Meyer at Casa Lever on April 1, 2014 in New York City. (Photo by Patrick McMullan/Patrick McMullan via Getty Images)
NEW YORK, NY - JUNE 16: (L-R) Eric Trump, Lara Yunaska Trump, Donald Trump, Barron Trump, Melania Trump, Vanessa Haydon Trump, Kai Madison Trump, Donald Trump Jr., Donald John Trump III, Ivanka Trump, Jared Kushner, and Tiffany Trump pose for photos on stage after Donald Trump announced his candidacy for the U.S. presidency at Trump Tower on June 16, 2015 in New York City. Trump is the 12th Republican who has announced running for the White House. (Photo by Christopher Gregory/Getty Images)
Republican Presidential candidate Donald Trump at a campaign rally at Concord High School with his daughter Ivanka Trump, and son in law Jared Kushner in Concord, NH on January 18, 2016. (Photo by Rick Friedman/rickfriedman.com/Corbis via Getty Images)
NEW YORK, NY - JULY 16: (L to R) Newly selected vice presidential running mate Mike Pence, governor of Indiana, Republican presidential candidate Donald Trump, daughter Ivanka Trump, her husband Jared Kushner and Vanessa Trump stand on stage at the end of an event at the Hilton Midtown Hotel, July 16, 2016 in New York City. On Friday, Trump announced on Twitter that he chose Pence to be his running mate. (Photo by Drew Angerer/Getty Images)
American real estate developer and presidential candidate Donald Trump (center) greets family members on stage during the Republican National Convention at Quicken Loans Arena, Cleveland, Ohio, July 21, 2016. Pictured are, from left, daughter Ivanka Trump and her husband, Jared Kushner, Trump, his wife, Melania, and son, Barron. (Photo by David Hume Kennerly/Getty Images)
UNITED STATES - JULY 12: GOP nominee Donald Trump, points to the crowd after accepting the GOP nomination to be President at the 2016 Republican National Convention in Cleveland, Ohio on Thursday July 21, 2016. Behind Trump from left are daughter Ivanka Trump, her husband Jared Kushner, daughter in law Vanessa Trump, and son Donald Trump, Jr. (File Photo By Bill Clark/CQ Roll Call)
MANCHESTER, NH - NOVEMBER 07: Republican presidential nominee Donald Trump (C) is joined on stage by his family (L-R) Lara Yunaska, Eric Trump, Vannessa Trump, Donald Trump Jr., vice presidential candidate Mike Pence, Ivanka Trump, Jared Kushner and Tiffany Trump during a campaign rally at the SNHU Arena November 7, 2016 in Manchester, New Hampshire. With less than 24 hours until Election Day in the United States, Trump and his opponent, Democratic presidential nominee Hillary Clinton, are campaigning in key battleground states that each must win to take the White House. (Photo by Chip Somodevilla/Getty Images)
NEW YORK, NY - NOVEMBER 08: President-elect Donald Trump embraces son in law Jared Kushner (R), as his daughter Ivanka Trump, (L), stands nearby, after his acceptance speech at the New York Hilton Midtown in the early morning hours of November 9, 2016 in New York City. Donald Trump defeated Democratic presidential nominee Hillary Clinton to become the 45th president of the United States. (Photo by Mark Wilson/Getty Images)
INDIANAPOLIS, IN - DECEMBER 1: President-elect Donald Trump and Jared Kushner take a tour of Carrier Corporation in Indianapolis, IN on Thursday, Dec. 01, 2016. (Photo by Jabin Botsford/The Washington Post via Getty Images)
WASHINGTON, DC - JANUARY 20: President Donald Trump shakes hands with Senate Minority Leader Chuck Schumer, D-N.Y, as he is joined by the Congressional leadership and his family while he formally signs his cabinet nominations into law, in the President's Room of the Senate, at the Capitol in Washington, January 20, 2017. From left are Senate Majority Leader Mitch McConnell, R-Ky., Senate Minority Leader Chuck Schumer, D-N.Y, Sen. Roy Blunt, R-Mo., Vice President Mike Pence and his wife Karen Pence, Jared Kushner, Donald Trump Jr., and Ivanka Trump. (Photo by J. Scott Applewhite - Pool/Getty Images)
US President Donald Trump (L) congratulates his son-in-law and senior advisor Jared Kushner after the swearing-in of senior staff in the East Room of the White House on January 22, 2017 in Washington, DC. / AFP / MANDEL NGAN (Photo credit should read MANDEL NGAN/AFP/Getty Images)
WASHINGTON, DC - JANUARY 23: Director of the National Economic Council Gary Cohn (L) and Senior Advisor Jared Kushner (R) listen to U.S. President Donald Trump deliver opening remarks during a meeting with business leaders in the Roosevelt Room at the White House January 23, 2017 in Washington, DC. Business leaders included Elon Musk of SpaceX, Mark Sutton of International Paper, Andrew Liveris of Dow Chemical, Mario Longhi of US Steel, Marillyn Hewson of Lockheed Martin, Wendell Weeks of Corning, Alex Gorsky of Johnson & Johnson, Michael Dell of Dell Technologies and others. (Photo by Chip Somodevilla/Getty Images)
TOPSHOT - Senior Advisor Jared Kushner (L) and Secretary of Homeland Security John Kelly (R) listen while US President Donald Trump puts his papers away at the beginning of a meeting on cyber security in the Roosevelt Room of the White House January 31, 2017 in Washington, DC. / AFP / Brendan Smialowski (Photo credit should read BRENDAN SMIALOWSKI/AFP/Getty Images)
WASHINGTON, DC - JANUARY 31: The name place card for White House Senior Advisor Jared Kushner, who is also the son-in-law of President Donald Trump, sits on the table before a meeting about cyber security in the Roosevelt Room at the White House January 31, 2017 in Washington, DC. Citing the hack of computers at the Democratic National Committee by Russia, Trump said that the private and public sectors must do more to prevent and protect against cyber attacks. (Photo by Chip Somodevilla/Getty Images)
WASHINGTON, DC - JANUARY 31: Jared Kushner, senior adviser to President Trump, listens to President Trump during a listening session with cyber security experts in the Roosevelt Room the White House in Washington, DC on Tuesday, Jan. 31, 2017. (Photo by Jabin Botsford/The Washington Post via Getty Images)
WASHINGTON, DC - FEBRUARY 3: President Donald Trump talks with IBM CEO Ginny Rometty, left, and adviser Jared Kushner before speaking to business leaders during a strategy and policy forum in the State Dining Room of the White House in Washington, DC on Friday, Feb. 03, 2017. (Photo by Jabin Botsford/The Washington Post via Getty Images)
US President Donald Trump arrives alongside Vice President Mike Pence (C) and White House Senior Advisor Jared Kushner (R) during a meeting with manufacturing CEOs in the State Dining Room at the White House in Washington, DC, February 23, 2017. / AFP / SAUL LOEB (Photo credit should read SAUL LOEB/AFP/Getty Images)
WASHINGTON, DC - MARCH 15: U.S. President Donald Trump waves while walking to a waiting Marine One helicopter with son-in-law and senior advisor Jared Kushner while departing the White House on March 15, 2017 in Washington, DC. Trump is scheduled to travel to Michigan and Tennessee today. (Photo by Win McNamee/Getty Images)
US President Donald Trump (3rdL), White House senior advisor Jared Kushner (4thL), US Secretary of State Rex Tillerson (2ndL) and Italy's Prime Minister Paolo Gentiloni (hidden) take part in a bilateral meeting in Villa Taverna, the US ambassador's residence, in Rome on May 24, 2017.
After a private audience wit Pope Francis early in the morning Trump's family will fly to Brussels this afternoon for meetings with EU and NATO officials before returning to Italy for the G7 summit in Sicily on May 26-27. / AFP PHOTO / MANDEL NGAN (Photo credit should read MANDEL NGAN/AFP/Getty Images)
US President Donald Trump (R) and his son-in-law and senior adviser Jared Kushner (L) listen to Apple CEO Tim Cook (C) during an American Technology Council roundtable at the White House in Washington, DC, on June 19, 2017. / AFP PHOTO / NICHOLAS KAMM (Photo credit should read NICHOLAS KAMM/AFP/Getty Images)
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A congressional aide agreed that “legally, Trump’s allowed to do what he did … our laws were obviously written with the assumption that presidents would … actually care about protecting our national security.”
However, President Trump’s ability to give his son-in-law access to sensitive information, doesn’t mean counterintelligence officials in the United States can’t simultaneously launch investigations to monitor his contacts with foreign officials. (Kushner has been known to frequently engage with foreign counterparts, including Crown Prince Mohammed bin Salman of Saudi Arabia, who has been linked to the murder of Washington Post columnist Jamal Khashoggi.)
Counterintelligence officials are “empowered” to keep tabs on Kushner, said Bakaj, including “looking at money being exchanged … anything that could lead to compromise.”
He told Yahoo News that Kushner may have been able to mitigate concerns about his foreign friendships and his failure to accurately fill out his security forms, “but the totality of the issues” from the attempted backchannel with Russia early on in Trump’s presidency to his ongoing business relationships “would be difficult to overcome,” he said.
But critics argue the issue is about more than what is legally permissible.
“Just because he has the lawful authority to do something, that does not mean the lawful authority cannot be abused,” said David Priess, a former CIA official, COO of the LawFare Institute, and author of the recently published How to Get Rid of a President, a history of attempts to remove commanders in chief.
Adam Schiff, chairman of the House Intelligence Committee, agreed that Trump’s decision amounts to “a serious abuse that endangers our security,” he wrote in a tweet.
However, there may not be a legal remedy for this kind of abuse, argues Mark Zaid, a prominent Washington national security attorney.
“If you want to use term generically as a lay person, fine,” he wrote in a tweet. “But I respectfully disagree that a President who utilizes clear constitutional power to grant security clearance constitutes ‘abuse,’ certainly not as a legal matter.”
Trump’s granting Kushner access to secrets may be less about a legal abuse of power than the message it sends to large number of government personnel whose continued employment depends on holding onto their security clearances.
“People who have never worked in government may not understand what a big deal this Kushner story is,” wrote Matthew Miller, a former Justice Department official, in a tweet. “Aside from the security risk and the lies, it is such an insult to every public servant who jumps through a million hoops to do things the right way with zero margin for error.”