Well-Guarded Secret – Security Clearances and Congress

Maybe you have heard the story.  The fox, put in charge of that hen house … The New York Democratic Governor who prosecuted prostitution, until … the Virginia Lieutenant Governor who, along with one former Vice President, led the “#me-too” movement, until … the Democratic House Oversight Chairman who tried to take down the White House on security clearances – granted to appointees he thinks disqualified? 

Wonders never cease, do they?  Nothing new under the sun.  That is right, US House Oversight Committee Chairman Elijah Cummings – perhaps egged on by his leadership – has decided to subpoena a White House staffer to “get to the bottom” of an ignominious White House offense:  a president granting security clearances to appointees he thinks were insufficiently vetted, unqualified and – in the Chairman’s view – not deserving of a clearance.

Now, listen closely.  The Chairman was once ranking minority member of the largest subcommittee of that same committee, back when I was staff director and counsel to successive Republican Chairmen.  In honesty, he is not a bad fellow.  We worked together on counter-narcotics, back when real oversight was being done.  But he and I know a secret.  

That is right, he and I know an open secret – one that would turn a hearing on security clearances upside down.  What do we know?  We know that over five years in which I was staff director and counsel, we often examined classified and law enforcement sensitive (LES) documents, including top secret military and 302 FBI documents.  That’s right. 

Here is the secret:  Like all congressional staff involved in intelligence, military and law enforcement oversight hearings or who are otherwise entrusted to see and handle classified or sensitive documents, I had to go through the full-field FBI investigation.  That investigation took months, involved interviews with about 60 people, and – in later years, when in the US military and at State, required regular updating.  But the Chairman knows he never held a clearance.  Not one.  He was never granted one.

Please understand – this is not a scandal, not in the traditional sense.  The Chairman of the Oversight Committee today – the man who will subject White House witnesses, no doubt, to a withering cross examination on their qualifications, or lack thereof – even today, holds no security clearance.  Never has.

Neither do his Democratic compatriots on that committee, who are insisting that the White House cough up witnesses, classified documents, interviews and answers to interrogatories, tied to a lack of security clearance procedures and perceived lack of clearance qualifications.

Notably, the President has statutory power to grant security clearances, rooted in Article II Commander in Chief power.  They are usually adjudicated by senior Defense or FBI personnel, as well as White House personnel, but a president has final say – and no appeal.  That might explain his assessment and rightful assertion of jurisdiction, in granting those security clearances.

But what about Congress?  Would you believe the 23 Democrat members of the House Oversight Committee, including Democrats Alexandria Ocasio-Cortez (D-NY) – an avowed socialist, Rashida Tlaib (D-MN) – who accuses others of racism, uses profanity against the President, and seeks his impeachment, Jamie Raskin (D-NY) – who sought a committee to have the President declared “incapacitated” under the 25^th Amendment, and countless others with equally disturbing views – all hold no clearances.

Here is the stunning part.  The hypocrisy in these high-brow scolds of Trump’s White House – which uses a process more stringent than in Bill Clinton’s White House – is bad enough.  It smells of rank politics, shameless and embarrassing, evidence that the Democrat Party has lost its way.  But there is more – and it is more serious.

The open secret – that Congressmen and women, on all committees and in both parties – hold no clearances – is bad.  But there is worse.  Congress asserts a right – not just on the Mueller Report and sensitive documentation, but regularly to see classified documents.  And the law, barring independent legal basis for not accommodating those requests, must comply.  They see them.

So, despite the fact that many Congressmen might be denied a Secret, Top Secret or Sensitive Compartmented Clearance if put through full-field investigation, they have a right to see classified information.  Prior felony convictions, questions of truth telling, integrity, suspect foreign contacts or affiliations, issues of drug use, fidelity, loyalty or conflicts of interest notwithstanding, members of Congress are not required to be vetted before they see classified information. 

So, the oversight process being what it is, just a heads up.  What you will hear in coming congressional hearings about the clearance process will likely echo of righteous indignation, harsh accusations and insinuations, political hair-on-fire stuff and a sense of (continuing) outrage at the Trump White House.  But take a deep breath.  It is all theater.

I wonder – just wonder – what would happen if a witness dared point out none of those on the panel questioning them, not one interrogator, inquisitor and accuser, holds a security clearance.  My guess is there would be pause – and then outraged Democrats would keep on talking. What do you think?  Anyway, now you know the rest of the story.