President Trump recently threatened to strip the security clearances of top former government officials who criticized his performance at Helsinki with regard to Russian president Vladimir Putin. Were Trump to carry out this threat, he would be violating the spirit, if not the letter, of the First Amendment. Such a decision, directed only at those who exercised their First Amendment rights to criticize Trump, might be seen by the courts as punitive government action directed at the content of speech. Even threatening to do so might deter critics from exercising their free-speech rights.
Trump’s threat is reminiscent of the decision by General Lewis B. Hershey, who was the director of the Selective Service System during the Vietnam War, to selectively draft critics of the war. In both cases, the government has the authority to act generally by cutting off security clearances or drafting individuals. But it may not have the constitutional power to act selectively against critics who are exercising their rights under the First Amendment.
Were the president to decide to end the security clearances of all former officials, the courts would be confronted with a legal issue similar to the one they faced with regard to the travel ban. In both situations, the president said things that suggest an unconstitutional motive: In the travel case, to ban Muslims; in the clearance matter, to stifle dissent. But then he acted, or would act, in a manner that on its face is constitutional: in the travel case, by not limiting the ban to Muslim countries; and in the clearance matter, by not limiting the cutoff to critics. In the travel case, a closely divided Supreme Court upheld the ban, but there is no assurance it would do so in the clearance matter. The difference is that the travel ban was directed against noncitizens, who have no constitutional rights, so the claim had to be based on a questionable expansion of the prohibition against the establishment of religion. In the clearance matter, the cutoff is directed against American citizens, and their claim would be a core violation of the right to free expression.
The Trump administration would argue that no one has the right to a security clearance. That is true. But even a governmentally granted privilege cannot generally be revoked by government officials as punishment for exercising one’s First Amendment rights.
It would be a close case, and you can be sure the American Civil Liberties Union would bring the challenge, despite its recent softness on the First Amendment. It would bring this case because the organization is a big critic of Trump and makes its money bringing lawsuits against his administration. So it’s a no-brainer for the partisans who now run what used to be a nonpartisan organization.
All Americans benefit from vigorous dissent, especially from security experts and former government officials. To be sure, some of the current criticism about which Trump is complaining seems partisan and over the top (e.g., accusing him of treasonous behavior in Helsinki), but that is precisely what the First Amendment is designed to protect: unfair and over-the-top criticism. No president should seek to stifle dissent, especially a president who himself is often partisan and over the top. I personally wish both sides would stop exaggerating and provide us with more nuanced exchanges, but the First Amendment doesn’t distinguish between good and bad speech. It leaves that to the citizens.
Even if the president’s actions were to be ruled constitutional, no president should use his enormous powers over our national security to stifle or deter dissent. So please, Mr. President, do not selectively remove the security clearance of those former government officials who disagree with you. Respond to them in the marketplace of ideas, but don’t try to shut down their stalls. This is not about you, Mr. President. Nor is it about your critics. It is about the right of the American people to hear all sides of controversial issues, without government officials placing their thumb on the scales of the marketplace of ideas.
Alan M. Dershowitz is professor emeritus of law at Harvard Law School and author of “The Case Against Impeaching Trump.”