“We might be facing a situation we’ve never faced before.”
Former White House staff secretary Rob Porter resigned last week following allegations that he physically abused two of his former wives. The Trump administration was made aware of these allegations weeks ago but decided to protect Porter even though his request for a security clearance was likely to be denied.
The Porter situation highlights a broader problem in Trump’s White House: Dozens of staffers, like Porter, are privy to sensitive materials like the president’s daily security briefings but have not been granted long-term access to classified information.
A Washington Post report by Matt Zapotosky, Josh Dawsey, and Devlin Barrett suggests that the White House is reluctant to get involved in any clearance cases because Trump’s son-in-law and adviser, Jared Kushner, is currently under scrutiny due to his complicated financial ties and the fact that he failed to disclose more than 100 foreign contacts on his initial application.
I wanted to know if it’s normal for a White House to be staffed by so many people without legal, permanent access to sensitive information, and if it’s the FBI, or the White House, that ultimately decides who gets approved. I reached out to Mark Zaid, a Washington lawyer who specializes in national security and often represents people who are going through the security clearance process.
A lightly edited transcript of our conversation follows.
Is it normal to have so many White House staffers operating without a permanent security clearance?
It’s hard to answer the question in a vacuum because we don’t have any data points to really compare it to. I can say this, though. I’ve been handling security clearance cases for more than 20 years throughout the entire federal system, and it’s rare to have this many hiccups in the White House.
Why is it so rare to see this problem in the White House as opposed to other areas of government?
Most of the time, we don’t see many problems with White House staffers receiving clearances because these people are typically the best and brightest. They’re not supposed to have the problems that we might see in an average person, and normally they’re people who have extensive government experience and are just transferring from one government agency to another with clearance intact.
This White House is unusual on so many different levels: You have people with no prior government experience, no security clearance experience, and extensive financial engagements and foreign connections that most typical federal workers would not have seen. So all of this has created a unique situation, and there really is no precedent for it.
These people who haven’t been granted permanent security clearances are given interim clearances, which means they still have full access to sensitive materials, right?
Correct. The reports I’ve read say that about 30 or 40 people are operating in the White House with interim clearances, and that means they have full access to everything you would otherwise have access to if you had been fully cleared.
It’s worth noting that there really is no such thing as a “permanent” clearance. All of these are subject to continuous evaluation and [the clearance] expires after a certain amount of time depending on one’s clearance level.
There seem to be two possibilities here: Either these 30 or 40 people, including Jared Kushner, are having trouble getting clearances due to their unusual backgrounds… or the FBI has found troubling or suspicious information about them during the course of their investigation.
Both of those scenarios could absolutely be correct for multiple people. We normally would expect the FBI to give priority to these senior White House staffers, and given who some of them are, it doesn’t surprise me that those investigations could take a lengthy amount of time.
I have clients whose investigations have taken two, three, sometimes four years for a variety of reasons — some nefarious, some trivial. There could be any number of reasons for a delay in the adjudication or investigatory process and it’s just hard to know without seeing all the specifics.
Something that’s not clear to me, and I assume most readers, is who actually makes the decision to approve or deny a security clearance. Is it the FBI or the White House or some other agency?
The FBI conducts the background investigations, but they do not formally decide who gets a clearance and who doesn’t. In fact, they don’t even make recommendations one way or the other; they simply conduct the investigation and hand over their findings.
So ultimately the White House decides who does or doesn’t have the ability to handle sensitive information?
For secret and top secret clearances, the White House has its own Office of Security that makes that decision. For access to what is called Sensitive Compartmented Information (SCI), that is done by one or more of the intelligence agencies, and usually it’s the CIA with the White House.
It could be the National Security Agency or the Defense Intelligence Agency depending on what access or information the person is going to be working with.
It’s not all that unusual to see interim secret or top secret clearances granted for over a year, but it is unusual to see SCI interim clearances for that long, because these are people who have access to the highest levels of classified information, including the president’s daily security brief.
This is the level of access Jared Kushner currently has, right?
Since the White House ultimately decides who gets a clearance, do you worry that we might end up in a situation in which the Trump administration offers high-level security clearances to people who can’t pass the requisite background check?
Well, my understanding has always been that the White House security office is run by career staff, not by political appointees, so I would be incredibly troubled if the White House career security staff granted the clearances.
Here’s what could happen, however. The president could order or direct the Office of Security to continue granting access to whoever based on the president’s constitutional authority, in which case I’m not sure there’s anything they could do about it.
“We might be facing a situation we’ve never faced before.”