Last week, President Donald Trump revoked former CIA Director John Brennan’s security clearance — the White House claims that he did so because of Brennan’s “erratic conduct.” On Tuesday morning, however, Trump sent a tweet essentially admitting that “erratic conduct,” in this instance, is a euphemism for “criticized Trump.”
Even James Clapper has admonished John Brennan for having gone totally off the rails. Maybe Clapper is being nice to me so he doesn’t lose his Security Clearance for lying to Congress!
— Donald J. Trump (@realDonaldTrump) August 21, 2018
The implication of Trump’s tweet is that former officials who are “nice” to Trump will get to keep their security clearance, while those who aren’t risk losing them. Such a standard is unconstitutional. One of the worst offenses a government official can commit against the First Amendment is “viewpoint discrimination” — that is, singling out an individual because the official disagrees with that individual’s opinion.
Indeed, the First Amendment typically prohibits viewpoint discrimination even when the government takes actions that are otherwise within its lawful power. Congress may, for example, levy an income tax of virtually any amount. But Congress could not impose an additional 10 percent income tax on people who oppose abortion, or on people who support Obamacare, or on people who vote for Democrats.
The First Amendment generally forbids the government from using its powers to punish disfavored views.
That’s why, even if Trump ordinarily has the authority to take away a former CIA director’s security clearance, he cannot strip away that clearance in order to sanction Brennan for the former director’s political views.
Brennan, who served in the CIA for three decades, is a frequent critic of Trump. Last June, Brennan warned that Trump “has shown highly abnormal behavior by lying routinely to the American people without compunction, intentionally fueling divisions in our country and actively working to degrade the imperfect but critical institutions that serve us.” He also compared Trump to the “corrupt, incompetent and narcissistic foreign officials who did whatever they thought was necessary to retain power” that Brennan studied during his time in the CIA.
Yet, while Trump’s tweet adds to the pile of evidence suggesting that the president violated the First Amendment when he pulled Brennan’s security clearance, it is an open question whether the First Amendment actually matters in this context. Last June, in Trump v. Hawaii, Republicans on the Supreme Court upheld Trump’s decision to ban nationals from several majority-Muslim nations from entering the United States.
The Court’s five Republicans did so, moreover, despite the fact that Trump frequently bragged that the purpose of this ban was to ban Muslims. Targeting individuals because of their faith violates the First Amendment’s protections against religious discrimination.
As a candidate, Trump called for a “total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.” Trump later said that he would structure his Muslim ban as a ban on people from certain countries entering the United States in order to veil its true purpose. “People were so upset when I used the word Muslim,” Trump told NBC’s Meet the Press in 2016, “and I’m okay with that, because I’m talking territory instead of Muslim.”
After Trump v Hawaii, it is unclear whether Trump’s fellow Republicans on the Supreme Court are willing to apply the First Amendment to Trump, at least when the president claims a national security justification for his actions. But that doesn’t mean that Trump’s actions are legal. It just means that the Supreme Court isn’t willing to enforce the Constitution.