Clearance Fiasco

What Everyone Gets Wrong About Kushner’s Clearance Fiasco

The president has the power to share whatever information he wants, and that’s why his son-in-law’s predicament matters less than you think.

By KEL MCCLANAHAN

If the flap over Jared Kushner’s access to America’s deepest secrets has made one thing clear, it’s that most people don’t really understand how the clearance process works, especially in the White House.

In case you somehow missed it: Kushner’s interim Top Secret clearance has been “downgraded” to an interim Secret clearance, and Washington’s chattering class is freaking out. But in the final analysis, the practical ramifications of this just aren’t that big a deal, because Kushner and the president will be able to find workarounds if they so choose.

Here’s what many don’t get about the security clearance process: It’s a “process” except when it isn’t, and whatever “rules” might apply only apply when the president wants them to. The president has the authority to share classified information with whomever he pleases, even if it’s the Russian foreign minister.

With that basic principle in mind, let’s first address what was actually done, or, more accurately, what was not done.Kushner’s clearance was not “denied” or “revoked.” A decision was not made that he was disqualified from handling Top Secret information but qualified to handle Secret information. And no, this had nothing to do with his financial dealings or frequent amendments of his paperwork (well, not directly at least, although they are likely responsible for the underlying delay).

Here’s what really happened: Kushner, like many other Trump officials (and many new hires across the federal government under any administration), was granted an “interim” clearance while he was being investigated for a full clearance. It’s basically an abbreviated background check and temporary grant of access to classified information based on a prediction that he will ultimately receive a full clearance down the road. Even today, he still has an interim clearance, and they’re still processing him for a full clearance. The only difference is that he now only has interim access to Secret information, not Top Secret information or Sensitive Compartmented Information (SCI)—a special type of information category that is slightly different than a Secret or Top Secret classification. But while he can only ostensibly access Secret information now, he is still being processed for a full Top Secret clearance with SCI access (colloquially called “TS/SCI”).

Various White House officials have stated that this development will not affect Kushner’s ability to handle his extensive portfolio. This might seem like an inexplicable sentiment, for a few reasons. First, there’s the question of how exactly he can continue to do his work if he has less access to classified information, which itself raises the more basic question: Why is he being processed for a TS/SCI clearance in the first place if he doesn’t need to access Top Secret or SCI information? As a general rule, people are not processed for a clearance higher than the classification level of information they need to be able to access to do their jobs. Sometimes this is obvious, and sometimes less so. For instance, even a janitor at CIA has to have a TS/SCI clearance simply because he has to go into rooms where such information is stored or might overhear a classified conversation while emptying a trash can. The White House chief calligrapher needs a Top Secret clearance because he has to know the president’s schedule. For this reason, “downgrading” a security clearance is virtually unheard of. If you were hired for a job that required access to Top Secret information, and you were “downgraded” to a Secret clearance, you can’t do your job and you’re fired. End of story. So there’s no point to “downgrading” someone, you just revoke their clearance. Plus, the only difference between a person with a Secret clearance and a person with a Top Secret clearance is that the latter needs to access Top Secret information. The risk analysis is still the same, and if you’re not able to obtain a Top Secret clearance because of whatever reasons, you’re not able (in theory) to obtain a Secret clearance because of those same reasons. (This rule isn’t always applied consistently, but it is the rule more than the exception.) So the idea of “downgrading” a clearance is pretty meaningless unless you simply no longer need access to Top Secret information.

So let’s just assume that Kushner is being processed for a TS/SCI clearance because the president wants it. Trump is the president; he can do that. It’s unconventional, but there’s nothing actually wrong with it. The president can give a TS/SCI clearance to his caddy if he wants to talk about classified information during a golf game. The caddy doesn’t even have to “go through the process”; the president can just bless him with a 5-iron. That’s because the entire clearance process is the creation of an executive order—E.O. 12,968 to be exact—and not a statute, and executive orders don’t actually bind the president, only his subordinates in the executive branch. So, we’ll assume that a possible explanation is that Kushner only actually needs access to Secret information to do his job, and it’s only because, say, the president wants to let him wander freely through the CIA archives that he’s being processed for a higher clearance.

But that explanation doesn’t make much sense either, because of the classification level of most or all of the information he would need to do his job. Information about the Middle East peace process simply isn’t classified “Secret.” An argument could be made that maybe it should be, but the fact remains that it just isn’t. Anyone who has filed any amount of FOIA requests for information about sensitive U.S. foreign policy endeavors will tell you that this stuff is Top Secret, if not SCI. A lot of this has to do with our agreements with other countries. One of the established reasons for classifying information is because it is “foreign government information,” and if a foreign government gives us information that it has classified a certain level, we generally assign a comparable level to that information.

So now let’s look at the Middle East peace process. In order to obtain peace in the Middle East, Kushner will need to have frank discussions with Israeli officials about what they want or need, including their vulnerabilities. This is some of the most highly protected information in Israel. There is simply not a reasonable chance that the Israeli government will be sanguine about us classifying that as anything less than Top Secret information. Nor should they be.

Which brings us back around to square one: Kushner only has an interim clearance that allows him to access Secret information. The White House insists his ability to perform his work duties is not affected. (We’ll assume for the sake of argument that this statement is true, because if you assume that anyone could be lying at any time, you really have no way to analyze anything.) He can only perform his work duties by accessing information that has traditionally been classified Top Secret. How do you square that circle?

Well, there are actually two ways. First, the White House could downgrade the classification level of the type of information Kushner needs to negotiate a Middle East peace deal. Unlike downgrading a clearance, it’s actually quite common to downgrade information, because classification level is based on the potential harm that could come from dissemination. Information that could cause “exceptionally grave damage to the national security” (Top Secret) in 1998 might only cause “serious damage” (Secret) in 2018. And since those terms are completely undefined and really up to the executive’s whim, it’s possible the president could just wave his hand and say, “All information that Jared Kushner needs to access is hereby classified Secret.” This likely would have serious repercussions for our relationship with Israel, as discussed above, but in all honesty, there’s no reason they would need to be told, and the only way anyone would ever learn if such an act happened would be if the press were told of the new policy or if a relevant document marked “Secret” were released or leaked. So it’s a possibility, although I don’t think a significant one.

The second possibility is more likely, I think, but it comes with its own legal ramifications. Remember how this entire process is entirely a creation of an executive order and does not apply to the president? That means that if President Trump calls Kushner into the Oval Office, hands him a copy of the President’s Daily Brief (PDB)—one of the most highly classified documents in the federal government—and says “Read that,” Kushner can read it. He can discuss it with his father-in-law and anyone else in the room. He can write a memo about it. He doesn’t need a clearance because the president can give classified information to a guy on the street if he wants to, even without giving that guy a clearance. So even if he can’t access Top Secret information on his own, he can still read the PDB with his father-in-law. He doesn’t have to receive a “waiver” or anything else, making the White House’s statements that Kushner has not been given a waiver relatively meaningless.

However, what Kushner can’t do is talk about Top Secret information with anyone except the president and whomever is in the room at the time. There’s no crime of reading classified information, but there are a lot of crimes about disseminating it, even to other people with clearances. More importantly, most of the crimes are not about “classified” information per se, but rather “national defense information,” which is not a creation of an executive order. It just so happens that national defense information is generally classified, but it’s not the classification that makes it a crime to disseminate it. So even if the president gave Kushner permission to discuss Top Secret information outside of the Oval Office, which he has complete authority to do under the current system, he can’t give him permission to discuss “national defense information” that happens to be classified Top Secret outside of the Oval Office. Which means that under a strict reading of the law, if the president had a discussion with his son-in-law about Top Secret information, and then his son-in-law left the room and had the same discussion with another White House staffer, he could arguably be prosecuted under the Espionage Act. Would he be prosecuted? Probably not, at least by this Department of Justice. But the risk is there.

Bottom line: If everything the White House has said about the matter is accurate, the fact that Kushner’s interim security clearance has been downgraded to Secret level probably isn’t going to have any practical effect, even on him, no matter how significant it might appear to be. We have to assume that if the president lets him see and discuss Top Secret information, there aren’t going to be many people in the White House who refuse to play ball, since there’s no criminal liability for them in exchanging information with someone the president has clearly indicated should be able to see it. However, if I’m right, then the longer the president plays games in the gray area here, the more potential criminal liability he is dropping in his son-in-law’s lap. So they may find down the road that this falls clearly into the category of “just because you can do something doesn’t mean you should.”