In a departure from previous administrations, the Trump White House allows staffers with only cursory background checks and interim security clearances to access classified information as if they had permanent authorization.
No federal rule or law prevents employees with an interim clearance from seeing or hearing classified information. But prior administrations of both parties were generally more protective of the nation’s secrets, according to six people familiar with the conduct, including those who worked in the West Wing during the Barack Obama and George W. Bush presidencies.
“That’s the smart thing to do. That’s the standard thing to do,” said Paul Pillar, former deputy chief of the intelligence community’s counterterrorism center who served nearly three decades at the CIA. “What’s going on in the White House now ... just throws the whole idea of security clearances in the trash.”
The White House — led by a president and filled with staff who have not served in government before — has been under fire for a week for allowing White House Staff Secretary Rob Porter to work for more than 12 months on a temporary clearance. He resigned abruptly last week amid the lengthy background check for his permanent clearance after allegations domestic abuse from both of his ex-wives became public.
Nonetheless, White House officials insisted Porter was able to fulfill his duties, particularly managing sensitive and classified information to President Donald Trump, while using an interim clearance because they said he was allowed to access the same classified information as if he had a permanent clearance.
“It's the same process that has been used for decades in previous administrations,” White House Press Secretary Sarah Huckabee Sanders told reporters this week.
But some former administration officials and attorneys who specialize in national security practices and procedures said supervisors and others who control classified information would often withhold it from those with interim clearances — as part of what one called an unwritten set of rules — because they had not successfully passed an extensive background check.
“We are seeing with this administration an incremental and deliberate pushing of boundaries that in the past were limited by institutional customs and norms,” said Bradley Moss, a Washington lawyer who specializes in national security and represents people going through the security clearance process. “Many of the personnel actions this administration has taken have been technically legal but more ethically questionable than what has been previously permitted.”
Dozens of other White House staffers reportedly have only interim clearances nearly 13 months into Trump’s presidency, a sign that investigators have remaining questions, doubts or other conflicts that still require investigating. The list includes Jared Kushner, Trump’s son-in-law and top adviser, who has complex finances as New York real estate developer and made mistakes on the required paperwork. He has been interviewed by Robert S. Mueller, the special counsel investigating Russia’s meddling in the 2016 presidential election.
National security experts say background checks can take months — even a year or more — but that the number of White House staffers without permanent clearance in this administration is high. That’s especially true given that it’s customary for individuals hired by a president to serve as his top aides to be granted the highest priority even as hundreds of thousands of people up for administration jobs wait for background checks.
“Sometimes it is necessary to have some type of preliminary clearance in order to fill a slot, but access has to be limited in terms of the kinds of information they can be in a position to receive or not receive,” Dan Coats, director of national intelligence, said on Capitol Hill Tuesday.
The security clearance process is technical and complex. But some of purposes are fairly clear — such as to prevent classified information from being handled by individuals vulnerable to blackmail or who may be reckless with it.
The background checks required for each type of clearance are vastly different. Both processes mandate a staffer seeking a clearance fill out a lengthy form that can run hundreds of pages long about their background, including foreign contacts and investments.
But an interim clearance can be granted in a matter of days after investigators look for any possible red flags listed on the form and conduct a database review that would include criminal and credit checks. A permanent clearance, however, isn’t granted until after a much more time intensive process that could include in-person interviews with family, friends, employers and neighbors across the country or across the world.
“They would not want those with interim clearances looking at sensitive stuff,” said Ilan Goldenberg, a former high-ranking official in both the State and Defense departments who is now a senior fellow at the Center for a New American Security.
The National Background Investigations Bureau, which conducts most checks outside the White House, estimated more than 700,000 people last year were waiting to receive a permanent security clearance — many to work for companies that contract with the Department of Defense — leading many to receive interim clearances.
One government official said he routinely uncovers dark pasts in individuals undergoing background checks — and said it is a constant reminder of why these checks are necessary.
“On a weekly basis, I have murderers who have access to classified information, I have rapists, pedophiles and people involved in child porn — I have all these things at the interim clearance level and I’m pulling their clearances on a weekly basis,” NBIB Director Charles Phalen said last year. “That is the risk we are taking. We are giving those people access to classified information with only the minimum amount of investigation.”
That said, officials in the security clearance arena disagree on a number of matters, in part because there are so few written guidelines to follow, according to nearly a dozen experts. They disagree on the length of time it takes to complete a background check, what information and data can be seen with an interim clearance and how long a staffer can have a temporary clearance before access to classified information is denied.
Some say it would be virtually impossible to treat employees with interim clearances differently because most colleagues would not know they didn’t have a permanent one. But others say the issue could arise if a staffer’s background becomes the subject of gossip or if the classified information originated from intelligences agencies particularly sensitive about leaks.
Evelyn Farkas, a former deputy assistant secretary of defense who is a nonresident senior fellow at the Atlantic Council, said it’s possible those who organize a meeting or posses a document could withhold information from someone without permanent clearance if it was particularly sensitive. “You could exercise the judgment,” she said. “It’s entirely possible and I would expect them to exercise caution.”
Agencies are required to share an employee’s temporary status, according to a 1995 executive order signed by former President Bill Clinton that created the modern security clearance system. “Where temporary eligibility for access is granted ... or where the determination of eligibility for access is conditional, the fact of such temporary or conditional access shall be conveyed to any other agency that considers affording the employee access to its information,” the order states.
But Leslie McAdoo Gordon, a Washington lawyer who represents people going through the security clearance process, said it would be wrong to restrict information to an employee with an interim status. “That’s an abuse of the system,” she said. “Interim clearance is clearance. You have access or you don’t.”
Whether temporary or permanent, all staff members working in the White House need a clearance — either confidential, secret or top secret — with Porter and Kushner likely needing the highest to serve as Trump’s most trusted aides. Those with top secret clearance can seek Top Secret/Sensitive Compartmented Information to see other sensitive information in specific categories.
Brian Egan, an attorney who worked in the White House, the National Security Council and the State and Treasury departments during the Bush and Obama administrations, said he would be surprised to learn Porter was granted a TS/SCI with an interim clearance status.
White House officials decline to reveal the exact number of staffers with interim clearances or answer additional questions about Porter’s clearance. Sanders said repeatedly this week that the intelligence community needs to determine whether the background check system should be changed.
The FBI conducts background checks for White House staff but a final determination is made by the White House Security Office, a small group of career professions. But a president can overrule the office.
“He has almost absolute authority,” Egan said. The White House said Trump was not aware of the allegations against Porter or his security clearance status.
“Keep in mind there are plenty of people who never get that interim security clearance because there’s something that comes up in their background and they never get that first step,” Marc Short, director of legislator affairs said on NBC Sunday.
John V. Berry, a Virginia lawyer who practices security clearance law, said when serious issues arise — like those with Porter — a staffer is generally not given an interim clearance or, if they already have one, it would be revoked pending the investigation.
A former official who worked in the Obama White House said that administration was careful to not allow those with longstanding interim clearances into top jobs in the first place. “People with interim clearances would not be in jobs that allowed them access to the crown jewels,” the official said.
Greg Gordon and Kevin G. Hall contributed.