By Katelyn Davis
Disclaimer: The views expressed in this blog post are those of the author and do not necessarily reflect the views of the United States Department of Justice, the United States Federal Government, or any Authorized Representative thereof.
On August 11, 2018, President Trump introduced the American public to Bruce Ohr via Twitter. President Trump has since called for the U.S. Department of Justice (“DOJ”) career employee’s firing and the revocation of his security clearance due to accusations that Ohr aided Christopher Steele in creating the so-called “Trump Dossier.” However, Ohr’s supporters believe that these threats to fire and revoke Ohr’s clearance are primarily motivated by Ohr’s “political beliefs that are different from [those of] the administration in power.”
Suppose, for the sake of discussion, that Ohr’s supporters are correct. What remedial procedures, if any, can Ohr take if his security clearance is revoked? What is the likelihood his security clearance would be restored if he filed suit in federal court? What are the potential consequences for other career DOJ and federal employees?
Procedurally, if Ohr’s security clearance was revoked and he wished to appeal, he could do so by appealing to either the internal Department Security Officer (“DSO”) or the Access Review Committee (“ARC”). The ARC is a committee that consists of the Deputy Attorney General, the Counsel for Intelligence Policy, and the Assistant Attorney General for Administration, or their designees. The employee may choose to petition to both the DSO and the ARC simultaneously, or wait for the DSO’s response before petitioning to the ARC. In either case, the DOJ employee has 30 days to respond in writing to the DSO’s determination and/or appeal to the ARC. But what if the DSO or the ARC deny the appeal? Does a DOJ employee (or other federal employee for that matter) have another recourse?
The limited case law available does not seem to work in Ohr’s favor. In regards to the denial of a security clearance, Department of the Navy v. Egan determined that “it is not reasonably possible for an outside, nonexpert body to review the substance of such judgment, and such review cannot be presumed merely because the statute does not expressly preclude it.” However, this case evaluated the Merit Systems Review Board’s ability to review removals based on national security concerns, so its application to the revocation of a security clearance absent a personnel action may be limited. Webster v. Doe is also limited in its applicability to Ohr’s case, as it concerns a Department of Defense employee; however, it offers a similarly grim outlook for Ohr. In Webster, the Supreme Court held that “Title 5 U.S.C. § 701(a)(2) precludes judicial review under the APA of the CIA Director’s termination decisions under § 102(c) of the NSA,” but that “District Court review of respondent’s constitutional claims is not precluded by § 102(c) of the NSA.” Therefore, Ohr could prevail in federal court if he files suit based on constitutional claims. Otherwise, like the Respondent’s claim in Webster, Ohr’s claim will likely not be afforded judicial review.
With such a foreboding outlook for Ohr, how could the potential decision to revoke Ohr’s security clearance affect those outside of Ohr’s bubble━federal and DOJ career employees? Again, assuming Ohr’s supporters are correct in that President Trump ordered the revocation of Bruce Ohr’s security clearance based on Ohr’s political beliefs, the potential consequences of this revocation for career DOJ and federal employees at large could be significant. Such a decision could have a “freezing” effect, whereby federal career employees no longer feel safe to be politically active, even in private settings as permitted under the Hatch Act. Alternatively, this decision could contribute to low morale, high paranoia, and high turnover rates, as well as discourage highly-skilled and qualified individuals from applying to federal jobs. With such possibilities, it should come as no surprise that many career federal employees will be keeping an eye out for Ohr’s fate in the weeks and months to come.
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