As a courtesy, former presidents are typically assured continued access to the country’s secrets when they request it. But Donald Trump’s personal debt ($400 million) and his proclivity to share secrets with foreign adversaries make him a security risk. As a private citizen, he could never qualify for the security clearance that was conferred upon him as president.
The decision to pull the plug falls to the new president—and Joe Biden shouldn’t hesitate to cut him off in a New York minute. The guy is a charlatan and a con man, and he’ll monetize every morsel of information he can get his hands on, national security be damned.
Under the statutes governing national security, the former president would have no legal course to challenge the decision of Joe Biden or any future president should they decide to withhold intelligence, says Dakota Rudesill, associate professor at Ohio State University’s College of Law. “The powers of the president depart completely from former presidents when they leave office,” Rudesill says. “Access to classified information is a privilege, not a right.”
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There is nothing in the Constitution that gives a former president standing to claim that his rights and responsibilities have been violated by current and future successors shutting him out of one of the prized perks accorded a former commander in chief. If Biden denies him access to classified briefings, Trump will be the first former president to suffer such a slight. It will be a significant stain on Trump’s place in history as he continues to grapple with his election loss and is actively searching for ways to monetize his post-presidential life.
There will be exceptions, Rudesill told the Daily Beast. If Trump is traveling internationally and the administration has intelligence about possible threats to his personal safety, that would be shared. And should Team Biden want to talk to Trump directly about his contacts with, say, Vladimir Putin or Kim Jong Un, “The new administration would be well advised to be very careful and mention only what is needed to disclose to Trump and to think what he might do with that information,” says Rudesill. “He has major problems with honesty, and he has massive debt, which makes him vulnerable to blackmail and selling what he knows.”
This is a sleeper issue that won’t come into play until next year when and if Trump requests an intelligence briefing. He has voiced such low regard for the intelligence community and as president shown so little interest in their findings that perhaps this is a problem that might never manifest itself. But as Joe Hart, a longtime trial lawyer in Washington told me, “When you’re a gardener and you see a bud, you know what’s coming.”
The bud in this case is Trump’s ongoing attempt to overthrow the results of the 2020 election through an endless stream of bogus legal challenges. When that’s exhausted, challenging his exclusion from the secrets former presidents share as a badge of honor in that exclusive fraternity would be a natural next step.
“There is no statutory basis for presidential access to classified intelligence after the term expires,” says Peter Shane, who was a Justice Department lawyer in the late 1970s and is now on OSU’s college of law faculty. Asked if Trump could take his case to the Supreme Court, Shane said, “If he’s claiming it’s unconstitutional to deny him clearance, he could physically go to the court and file his claim. It would have no basis. Congress has written it [the law] in such a way, it is non-reviewable.”
Shane adds, “It’s easier to imagine him going to court in the hope of being denied so he could bitch and moan.”
Congress has granted broad authority to the executive branch on security decisions. Trump himself exercised that power when he ordered security clearance granted to his son-in-law, Jared Kushner, who had been denied in the normal process because of business conflicts. Trump arbitrarily pulled former CIA Director John Brennan’s security clearance because he didn’t like Brennan criticizing him on cable television.
It’s not hard to imagine Trump picking up the phone and calling Putin, or any of the other dictatorial leaders he’s friendly with, and spilling secrets accidentally—or deliberately. “The concern hypothetically would be that he could provide classified information to someone who shouldn’t receive it, that might endear him to a foreign power where he has properties or a foreign power that has some control over his ability to service his debts,” says Rudesill. “There’s so much about his finances that we don’t know.”
David Priess, formerly with the CIA and author of The President’s Book of Secrets about the PDB (President’s Daily Brief), a cornerstone of U.S. intelligence, says there’s no mystery about what Trump will soon be facing. “Once you become a former president, you have absolutely no constitutional or legal authority and therefore you have no access,” Priess says. “It is a custom, and it is only a custom that former presidents are provided with intelligence material.”
Typically, a former president going overseas or giving a speech to an international audience would consult with the State Department to make sure they’re on the same page as the White House. President Obama reportedly did not request anything from the Trump White House, nor did Trump offer anything. President Carter over the years often felt miffed that whatever administration was in power didn’t consult him often enough, and he would have briefers travel to Plains, Georgia, to fill him in. The late President Bush, as a former CIA director, stayed closest in touch to the PDBs that other presidents were grateful to be free from.
“I would imagine that Biden will not offer anything to Trump independent of a request, and I also imagine Biden and Jake Sullivan (the incoming NSC adviser) probably hope they never get such a request and hope the problem goes away by itself,” says Priess. “It will be a tough decision for Joe Biden because he made it clear he wants to restore some of the norms and traditions Trump has trampled.”
That may be, but sharing classified intelligence with his successor is one protocol that Biden will be wise to set aside—not for his sake, but for the country’s.
