Probably not.
After Trump released an August 15, 2018 statement (originally dated July 26, 2018) denying former DCI John Brennan “access to classified information” pursuant to Trump’s “constitutional authority,” Brennan said he had been “approached by lawyers” suggesting litigation to enjoin the President from taking similar action against others.
The President’s statement says that the retention of clearances by heads of intelligence and law enforcement agencies after leaving government is based on the sharing of “special insights” with successors and “professional courtesy.”
Trump’s statement says that neither justification applies to Brennan. Shared insight benefits are “outweighed by the risks posed by his erratic conduct and behavior.” And that conduct and behavior exceed the limits “of any professional courtesy that may have been due to him,” Trump says. The rest of the Trump statement raps Brennan for “wild outbursts” on the internet and television including “increasingly frenzied commentary” and lists cleared people that Trump is evaluating for revocations.
Any analysis of the chances of a lawsuit’s success has to start with the fact that no one has a right to a security clearance. In fact, 4.1 million persons outside government (1.3 million with top secret) and 500,000 companies have clearances to pursue government contracts. Each must apply with rejection being essentially the final word.
The number in government is unknown.
Each clearance is secured after an investigation by government contractors (not the FBI) and each is a requirement of employment. There are websites dedicated to the availability of jobs outside government that require a security clearance.
The remarkable part of Trump’s August 15 statement is that it is entirely transparent. He has taken this action because he doesn’t like Brennan after Brennan’s accusations against Trump personally. Living up to his reputation as “unique” in the conduct of his office, the statement is a feast of adjectival invective. This is consistent with Trump’s continuing characterization of the Mueller investigation as a “witch hunt” in which he is the male witch much like Alfred Lunt in “Rosemary’s Baby.”
But there are a couple of considerations that could affect the result of any litigation. First, a revocation of Bruce Ohr’s clearance would strip a career Department of Justice employee of the ability to do his job, including investigating Trump, the man doing the revoking. So far Ohr is the only one that falls into this category in the proposed list of revocations being “evaluated.” The threat of stopping the entire investigation through wholesale revocations is clear.
More broadly, the fact that Trump’s behavior as our chief executive in opposing Mueller and doing the Brennan revocation and others to follow is designed to protect and vindicate himself is the only glimmer of light that might save any proposed litigation from falling on a motion to dismiss. The fact that a president can revoke security clearances may not apply if he does so for corrupt reasons.
How much governmental action can a president take in his own self interest without some sort of judicial action?