A criminal conviction, however, is a long-standing disqualifier for holding a security clearance – a license to access national security secrets, including documents marked Top Secret. Just being charged criminally can mean denial or loss of clearance too.
Trump also was criminally charged in Georgia state court and the Washington, D.C., federal court in relation to his efforts to overturn the 2020 election, and he was criminally charged in federal court in Florida for obstruction of justice and wrongful retention of a trove of highly sensitive documents after his first term ended.
This dilemma is one that I, as a law professor who teaches and writes about secrecy and who earlier in my career handled classified information while working for the U.S. intelligence community and a U.S. Senate committee, would never have expected.
The good news is that the law has clear answers.
Access because of his elected position
Those answers start with this legal certainty: Presidents get access to classified information because of the office they hold, not because they meet criteria in executive orders and administrative rules. The president technically does not even have a clearance. Practically and legally speaking, the president also sits at the apex of the executive branch’s massive secrecy apparatus.
Therefore, because Trump was elected to a second term, he will again have expansive access to classified information and control over it as of noon on Jan. 20, 2025, when his term begins. He will also have control over secrets and clearances available to others. The American electorate made that decision.
Before Trump again takes office, his access to classified information is in the hands of the current and outgoing president, Joe Biden. Typically, a sitting president authorizes the major party nominees, including their opponent if the incumbent is running, to have access to classified briefings during the campaign. Although U.S. intelligence officials had planned to do the usual briefings this year despite Trump’s criminal record, Trump refused them. He said he worried that the briefers would leak them and blame him.
Now that the election has been decided, reports indicate that Trump will begin receiving intelligence briefings.
It is not yet completely clear, but Trump’s election does appear to be pushing aside his numerous criminal cases. In New York state court, the judge is considering whether to dismiss the case in which he has already been convicted. And the Georgia state case may face years of delay. Because of the Justice Department’s long-standing policy against prosecuting a sitting president, special prosecutor Jack Smith is moving to abandon both federal cases and resign in advance of Trump’s threat to fire him.
The US secrecy system
Most U.S. government employees and contractors do not have or need a security clearance. But those whose jobs involve handling sensitive information must apply for clearance. If their record suggests trustworthiness, they can receive permission to access one or more of the several levels of classified information, including Confidential, Secret and Top Secret.
Federal investigators carefully screen applicants for national security positions and security clearances. To assess a candidate’s trustworthiness, investigators interview the candidate, review their application and search databases. Some investigations involve a polygraph of the candidate and interviews of people they know. Once a clearance is granted, investigators continue to monitor clearance holders.
Key factors the investigators consider include loyalty to the United States, respect for rules and the rule of law, psychological stability, good judgment and good character in terms of trustworthiness and integrity. Substance abuse, marital infidelity or financial problems can suggest poor judgment and vulnerability to blackmail or other kinds of coercion.
The president’s broad power
The president oversees the country’s entire national security secrecy system. The president has the authority to read all classified documents, to classify and declassify almost any piece of information and to oversee the security clearance system. There is no other government official who decides whether the president should have access to the nation’s secrets.
The Supreme Court has held that authority over classification and clearances flows in part from the power the Constitution gives the president. In a dangerous international security environment, the president needs to be able to know secret information about foreign threats, communicate confidentially with foreign colleagues and subordinates, and act with what Alexander Hamilton called in the Federalist Papers “secrecy, and dispatch.”
Like the president, members of Congress get access to classified information by virtue of election, not by going through the regular security clearance process.
Normally, Trump wouldn’t get clearance
The dilemma is obvious: Trump will lead a national security enterprise that surely would have denied him a security clearance if he had to follow the rules that apply to his former and future subordinates.
If someone has a criminal indictment or conviction, or a civil judgment involving fraud, they generally cannot get clearance. Such a court record suggests disrespect for the law, dishonesty and problems following rules, which are integral to protecting classified information.
No reasonable background investigator would ignore the staggering evidence against Trump if he were to apply in the normal way.
Under the commonly used SMICE rubric, for example, Trump is all red flags. SMICE stands for categories of temptations to put personal interests over one’s obligations to the nation and to protect classified information: sex, money, ideology, crime and contraband, and ego.
First, sex: There is extensive evidence that Trump committed sexual misconduct. Trump’s conviction on 34 felony counts resulted from prosecutors at trial convincing the jury of what Trump continues to deny: his participation in a conspiracy to falsify business records to facilitate hush money payments to a porn star with whom Trump had sex in 2008 while he was married and his wife was pregnant.
Even marital infidelity on its own can endanger a clearance, because it suggests disloyalty and deception. It creates a dirty secret, creating a risk of blackmail. The public record contains considerable evidence of Trump’s misconduct and infidelity. In recent civil cases, the writer E. Jean Carroll won judgments against Trump for sexually assaulting her in the 1980s and making knowing harmful false statements about it. There are other credible allegations, as well. In 2005, Trump bragged on tape about his sexual assaults, saying that he will “just start kissing” women without consent, and that “when you are famous they let you do anything.”
Second, one of the most common reasons for clearance denial or suspension is credit card debt or other financial problems. They create a motive for taking bribes or doing business deals in exchange for leaking secrets or other disloyalty.
Trump’s businesses have recorded six bankruptcies. A US$450 million fraud judgment from February 2024 has put Trump’s finances in jeopardy. There is credible evidence that his business finances have been linked with foreign governments, particularly Russia.
Third, there is abundant evidence that Trump is a political extremist. Trump told a violent militia before the 2020 election to “stand back and stand by.” The U.S. House Jan. 6 committee found in 2022 that Trump was part of a “multi-part conspiracy” to overturn the lawful results of the 2020 presidential election, an effort that included the violent attack on the U.S. Capitol spearheaded by that same militia, the Proud Boys. Even Trump’s own White House chief of staff, chairman of the joint chiefs of staff and secretary of defense have warned that Trump fits the definition of a fascist, meaning he is a violent authoritarian and a threat to democracy.
On contraband, the Justice Department presented overwhelming evidence that Trump knowingly retained thousands of pages of classified documents after the end of his term in office – at which point his authority to have them expired – and opposed lawful government efforts to retrieve them. That case was later dismissed for other reasons.
Finally, ego: The public record is awash with testimonials from people who have worked closely with Trump that he is a narcissist. Although that kind of mental health assessment can be problematic for nonprofessionals to make without a formal assessment, the common claim here is that Trump has a grandiose sense of self-importance. Critics, including former colleagues, say he expects special treatment, avoids accountability and is so self-absorbed that he cannot act responsibly or with appropriate empathy.
For all of these reasons, there is no question: If he were treated like anyone else, Trump would never get clearance.
But the voters have decided to restore Trump to the White House and in the process again invest him with the central role in the government’s massive secrecy apparatus. That was their choice. It was an unusually informed one, too, thanks to the various court cases and other evidence in the public record. Appropriately, the Biden administration has respected the electorate’s judgment by moving to provide classified briefings during this presidential transition period.
This is a revised and updated version of an article originally published July 9, 2024.
Dakota Rudesill, Associate Professor of Law; Senior Faculty Fellow, Mershon Center for International Security Studies, The Ohio State University
This article is republished from The Conversation under a Creative Commons license. Read the original article.
