Judicial Constraint of President’s Security Clearance Authority Affirmed

On Monday, the Trump administration walked away from its attempts to punish disfavored law firms when it moved to voluntarily dismiss its appeal of earlier court decisions. The attempted punishment included, in part, the suspension of “any active security clearances held by individuals at (the firms), pending a review of whether such clearances are consistent with the national interest”. On Tuesday, the Trump administration attempted to walk back its walk away.

The actions in question dated back to March 2025, when Trump issued a series of executive orders which singled out several law firms for punishment, owing largely to past legal work on behalf of clients opposing the president and policies he had championed. In addition to suspending security clearances held by their lawyers, the orders directed federal agencies not to contract with the firms or permit their staff into federal buildings.

When a number of the affected law firms went to court in order to block the punitive orders, I was one of a number of individuals who filed an expert report in favor of the plaintiffs. My background and credentials for filing this report included serving as the Director of the Information Security Office, wherein I was responsible for policy oversight of the Executive-branch-wide national security information classification system during the George W. Bush administration. Before that, I served for nearly three decades in the Department of Defense, including as Deputy Assistant Secretary of Defense (Security and Information Operations).

In its filings, the government acknowledged that these suspensions applied to all the plaintiff’s employees, lawyers, and non-lawyers, regardless of their role at the firms, the reason for the grant or use of the clearance, or any other individual characteristics, such as the employee’s former or current military service. Citing Lee v. Garland, the government held that the section of the orders suspending security clearances was “not judicially reviewable,” considering “governing D.C Circuit precedent” and thus required dismissal of plaintiff’s claims regarding security clearances. However, the government’s citing of Lee represented a fundamental, if not uncommon, misreading of the 1988 Supreme Court case Department of the Navy v. Egen, which served as the underlying case cited in Lee.

Navy v. Egan has often been interpreted to support broad presidential authority over national security generally and particularly over access to classified information. Egan is regularly cited in support of strong, even unchecked executive authority and judicial deference to executive claims. However, at its core, the Egan decision was prompted by a narrow statutory dispute: Did the Merit Systems Protection Board (an executive branch body) have the authority to review the revocation of a security clearance by the Navy (another executive branch body)? The court concluded that Congress had not intended to permit such review.

As I stated in my expert report, the core issue in the matter of the security clearances for employees of the targeted law firms was not only different from Egan but even more fundamental. I wrote “The arbitrary directive of immediate suspension of security clearances not for any personal conduct by any clearance holder but rather simply for that individual’s association with a law firm is no different analytically than if a directive were issued to immediately suspend the security clearances of all Jews or Muslims, all members of the LGBTQ+ community, all women, or all registered Democrats or Republicans.”

While it is encouraging in this instance to see the Judiciary not reflexively grant unfettered deference to the Executive in national security affairs, more needs to be done to constrain overreach by the current and future presidents in the realm of access to classified national security information, regardless of how the administration’s off-again, on-again appeal evolves. As noted by constitutional law scholar Louis Fisher in a legal analysis written for the Law Library of Congress, in Egan, the Court appeared to deliberately limit its deference to the Executive by explicitly stating “… unless Congress specifically has provided otherwise”.

So, what can and must Congress do? The ability of Congress to insert itself in matters of classification is not without precedent. Pre-Egan, Congress very much involved itself in classification matters with the passage of the Atomic Energy Act of 1954. Post-Egan, Congress passed the President John F. Kennedy Assassination Records Collection Act of 1992, which included the establishment of the Assassination Records Review Board (ARRB) to consider and render decisions when a U.S. government agency sought to postpone the disclosure of classified or otherwise sensitive assassination records. Finally, in 1994, Congress created the Commission on Protecting and Reducing Government Secrecy (also called the “Moynihan Commission,” after its chairman, Senator Daniel Patrick Moynihan.) The very first recommendation of this bipartisan panel was for Congress to enact a statute “to improve the functioning of the secrecy system and implementation of established rules.”

It’s incumbent upon Congress to step up to its role in this matter as envisioned by Senator Moynihan over 30 years ago. Protecting our nation from actual and potential adversaries is not a partisan issue. In an increasingly dangerous world, critical national security tools such as personal security clearances and safeguarding classified national security information must be free of partisan considerations and abuse. While democracy and justice triumphed in this instance, more needs to be done to constrain the actions of this and future presidents who so readily disregard the rule of law.

J. William Leonard is the Former Deputy Assistant Secretary of Defense (Security & Information Operations), Former Director, Information Security Oversight Office and Former Chief Operating Officer, National Endowment for Democracy. He is a member of The Steady State.

Founded in 2016, The Steady State is a nonprofit 501(c)(4) organization of more than 390 former senior national security professionals. Our membership includes former officials from the CIA, FBI, Department of State, Department of Defense, and Department of Homeland Security. Drawing on deep expertise across national security disciplines, including intelligence, diplomacy, military affairs, and law, we advocate for constitutional democracy, the rule of law, and the preservation of America’s national security institutions.