In a highly controversial move, President Donald Trump has revoked the security clearance of former CIA director John Brennan and ordered the review of other officials who all share one obvious distinguishing characteristic: they are all fierce critics of Trump.  The move has been widely condemned as Nixonian and amounting to a black or enemies list.  While I have been highly critical of everyone on the list (and called for some to be fired and, in a couple cases, prosecuted), I find the move very troubling from a free speech perspective.  Indeed, I am still uncertain about the rationale for the actions and why the list would be composed entirely of Trump critics if based on a consistent, apolitical basis.

The press conference only served magnify these concerns.  Sarah Huckabee Sanders read a letter from Trump dated three weeks ago but only now announced to the world.  Brennan was singled out as using his status “to make a series of unfounded and outrageous allegations” and “wild outbursts on the Internet and television about this administration.”

The letter appears to have been written around the time when this idea was first made public on July 23rd but nothing was said about its implementation.  Even stranger is the issuing of the letter today with the July 26th date and then the reissuing of the letter without the date with no explanation. It is another example of the poor record of rollouts for this Administration. These are basic errors that seem to plague this Administration.

The list itself however is the most curious. The letter calls for the review of former FBI director director James Comey, former national intelligence director James Clapper, former CIA director Michael Hayden, former national security adviser Susan Rice and former acting FBI director Andrew McCabe. former acting attorney general Sally Yates, former FBI agent Peter Strzok, former FBI counsel Lisa Page, and FBI agent Bruce Ohr.

Former high ranking officials are allowed to maintain access to classified information to allow them to consult on matters that arose during their tenures as well as a simple professional courtesy.  Frankly, most do not use the clearances after leaving the government and this is not likely to have a pronounced effect.  Indeed, Comey and McCabe already lost their clearances — a point that was repeatedly made back in July when this idea was first aired.

However, the greatest question remains the reason for those specific individuals.  Ohr and Page have not gone public.  Yates (who I agreed with Trump in firing) achieved notoriety because of her stand against the travel ban.  She was wrong in the action that she took, but that hardly distinguishes her from other prior officials in terms of her clearance.  She is also a vocal critic of the President’s.

It is difficult not to see this list as reflecting the criticism of the President.  Lines like this one seems less than objective in describing Brennan’s public commentary: “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 facilities [facilitates] the very aim of our adversaries, which is to sow division and chaos.”

Indeed, it would have been an easy thing to add other officials who committed the predicate acts  — once the Administration clearly states what those acts or criteria may be.  It does not help matters that the Director of National Intelligence Dan Coats was reportedly not consulted on unprecedented order.

Having stated the obvious free speech concerns, this order (like such many in this Administration) would push us into uncharted legal waters if challenged.  Trump has the clear advantage.  The assumption is that a challenge could be raised for a clearly unconstitutional purpose like banning African-Americans from holding clearances.  However, the White House has emphasized that this is a case-by-case determination with only Brennan being revoked thus far.  Clearances are a privilege controlled ultimately by the President.  Courts are loathe micromanage who can hold clearances in the Executive Branch.  Most cases focus on procedural rights in being allowed to challenge such decisions. There is currently no case that would directly contravene Trump’s authority in barring access to former officials on a case-by-case basis.

Here is the letter read by Sanders:

As the head of the executive branch and Commander-in-Chief, I have a unique constitutional responsibility to protect the nation’s classified information, including by controlling access to it.  Today, in fulfilling that responsibility, I have decided to revoke the security clearance of John Brennan, former Director of the Central Intelligence Agency.

Historically, former heads of intelligence and law enforcement agencies have been allowed to retain access to classified information after their government service so that they can consult with their successors regarding matters about which they may have special insights and as a professional courtesy.

Neither of these justifications supports Mr. Brennan’s continued access to classified information.  First, at this point in my administration, any benefits that senior officials might glean from consultations with Mr. Brennan are now outweighed by the risks posed by his erratic conduct and behavior.  Second, that conduct and behavior has tested and far exceeded the limits of any professional courtesy that may have been due to him.

Mr. Brennan has a history that calls into question his objectivity and credibility.  In 2014, for example, he denied to Congress that CIA officials, under his supervision, had improperly accessed the computer files of congressional staffers.  He told the Council of Foreign Relations that the CIA would never do such a thing.  The CIA’s Inspector General, however, contradicted Mr. Brennan directly, concluding unequivocally that agency officials had indeed improperly accessed congressional staffers’ files.  More recently, Mr. Brennan told Congress that the intelligence community did not make use of the so-called Steele dossier in an assessment regarding the 2016 election, an assertion contradicted by at least two other senior officials in the intelligence community and all of the facts.

Additionally, 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 facilities [facilitates] the very aim of our adversaries, which is to sow division and chaos.

More broadly, the issue of Mr. Brennan’s security clearance raises larger questions about the practice of former officials maintaining access to our nation’s most sensitive secrets long after their time in government has ended.

Such access is particularly inappropriate when former officials have transitioned into highly partisan positions and seek to use real or perceived access to sensitive information to validate their political attacks.  Any access granted to our nation’s secrets should be in furtherance of national, not personal, interests.  For this reason, I’ve also begun to review the more general question of the access to classified information by government officials.

As part of this review, I am evaluating action with respect to the following individuals: James Clapper, James Comey, Michael Hayden, Sally Yates, Susan Rice, Andrew McCabe, Peter Strzok, Lisa Page, and Bruce Ohr.

Security clearances for those who still have them may be revoked, and those who have already lost their security clearance may not be able to have it reinstated.

It is for the foregoing reasons that I have exercised my constitutional authority to deny Mr. Brennan access to classified information, and I will direct appropriate staff of the National Security Council to make the necessary arrangements with the appropriate agencies to implement this determination.