ODNI GC Klitenic: President Has Sole Authority Over Security Clearances, But Is Not Member Of Intelligence Community

Jim here again.

I want to go all the way back to September 13 in the Ukraine whistleblower saga. Recall that at this time, we strongly suspected but did not yet know that the complaint centered on President Trump. Congress was clamoring for the report from the Inspector General of the Intelligence Community to be released and for testimony from ICIG Michael Atkinson and/or Acting Director of National Intelligence Joseph Maguire. In response to those Congressional demands, the General Counsel of the Office of the Director of National Intelligence, Jason Klitenic, issued a letter in which he provided the rationale for his decision that Atkinson was not required to pass the complaint along to Congress even though Atkinson had come to the conclusion that the report was credible and represented an urgent concern that merited sharing with Congress. Because Trump eventually relented on the issue of the report and released it, the narrative has moved quickly beyond Klitenic’s actions. But let’s look at his primary justification for ruling that this report should not be disclosed:

Yesterday, Marcy went into the details of what transpired within DOJ in the Office of Legal Counsel during these deliberations, but here I want to concentrate just on how Klitenic relied on OLC’s interpretation to come to the conclusion that one of the two most important determining factors in stating that Atkinson could not forward the complaint to Congress was that it applied to “someone outside the Intelligence Community”. Knowing as we do now that the complaint did indeed focus on Trump’s words and actions, Klitenic is stating clearly that the President is outside the Intelligence Community. This is really rich coming from Klitenic, because just about two weeks before the Trump-Zelensky phone call, Klitenic had helped to shut down the Congressional investigation of the scandal surrounding the issuance of security clearances within the Trump White House.

I’ve not yet found Klitenic’s letter of July 10, 2019 that was sent in response to a letter from Senators Warner, Feinstein, Menendez and Reed on March 8, 2019 demanding that then-Director of National Intelligence Dan Coats and Atkinson “review compliance by the Executive Office of the President (EOP) with policies and procedures governing security clearances and access to secure compartmented information (SCI)”. Note that Klitenic’s response is well past the 60 day window the Senators granted for a response. Here is Atkinson on July 22, where he cites Klitenic’s letter and interpretation:

So, on July 10, 2019, Klitenic ruled that the President alone has authority of who is granted a security clearance and even who gets access to SCI. Recall that one of the central figures of this security clearance scandal was none other that Jared Kushner. His clearance was originally denied and Trump overruled the denial. One whistleblower on the security clearances, Tricia Newbold,was so incensed over Trump’s actions that she went public, as noted in this April 1 article in the Washington Post.

Lucky for Kushner that he still has SCI access since it appears that records of Trump conversation’s with Jared’s BFF Mohammad bin Salman have been stashed at that level of classification. It is even more lucky for Kushner that although his father-in-law is not a member of the Intelligence Community, many of his most important conversations live well-buried within it.

Finally, many of you know that I am a diehard fan of college baseball. So of course when I looked at Klitenic’s biography, I couldn’t help noticing that he claims to have been an All-American baseball pitcher in college. That claim does indeed check out, although in true trash talk fashion I would add the asterisk that Johns Hopkins competes in Division III in baseball. One can’t help wondering at this point when Chief Justice John Roberts, who at his confirmation stated his job is to “call balls and strikes” will be ruling on pitches made by Klitenic.

59 replies
  1. Pete T says:

    So, I might not have this right, but let’s give it a try.

    Trump: “So, on July 10, 2019, Klitenic ruled that the President alone has authority of who is granted a security clearance and even who gets access to SCI.”

    Trump: “Knowing as we do now that the complaint did indeed focus on Trump’s words and actions, Klitenic is stating clearly that the President is outside the Intelligence Community.”

    I suppose the argument to be made is the granting of security clearances (for WH personnel) to the SCI by POTUS does not mean that POTUS is inside (not outside) the Intelligence Community.

    But, can these two things be true at the same time in the world most of us live in?


    • earlofhuntingdon says:

      The clearance ruling fits a pattern of consistent protection of the president, essentially regardless of his conduct. But it is also logical. The president is also, for example, not a member of the US armed forces – while serving as president, he cannot be – but remains their civilian commander-in-chief.

      • Jim White says:

        Yes. But if a president orders the armed forces to commit a war crime, is not the president subject to the same prosecution? Granted, not in the UCMJ, but Congressional oversight would certainly apply here (and my ultimate pipe dream that bmaz always rightly shoots down, the ICC). So it seems to me that the parallel should apply with regard to intelligence. A president should be subject to Congressional oversight if the president commits a crime like soliciting foreign interference in an election or provides security clearance to someone who is a known risk for leaks and/or bribery.

        • earlofhuntingdon says:

          Absolutely. The responsibility of leadership should increase in equal measure as its authority is enhanced.

          Trump has spent his whole life avoiding liability for everything. But he’s now a lowly public employee. Congress should remind him of what comes with that – and get off its butt and vote to authorize an impeachment inquiry.

          Pompeo’s recent fuck you to Congress reaffirms that he, too, should be impeached.

          • Geoff says:

            I think Barr is the first one that needs to be impeached. He can definitely cause the most trouble. We need some real heroes in the JD to step up and rat this turd out. There are so many people in on this, there has got to be one who is going to have at least one day where their conscience re-emerges and wins out.

  2. Jim White says:

    That’s what strikes me. But to be fair, those in oversight functions often aren’t a part of what they oversee. What complicates it for me is that Trump doesn’t just have the say so in who is granted clearance and then keep his distance, he then goes out and participates in many activities that otherwise would seem to qualify as intelligence work.

    • AndTheSlithyToves says:

      “So what about the hapless American President? What category does he fir? It will easily be revealed that, to Russia, Donald Trump started as a useful Idiot, then became an Unwitting Asset, but quickly became a Witting Asset once he realized that Russia was working in his best interest.” –Malcolm Nance | The Plot to Destroy Democracy

  3. GKJames says:

    It risks a descent to, What’s the definition of “is” and “member”. Klitenic likely will argue that the president’s authority over the IC does not make him a member of it.

  4. dwfreeman says:

    What you and Marcy have so effectively reported about the evolution of the whistleblower’s complaint processing for congressional disclosure are all the legal precautions and roadblocks put in its pathway to prevent public release.

    It is clear that the complaint would never have reached Congress were it not for Atkinson’s certification of the complaint as credible and an urgent concern and House Intelligence Committee chairman Adam Schiff learning of the report and demanding its release for congressional review.

    Of course, it took the impeachment threat to not only spring it loose but force the White House to offer memorandum details of the Zalensky call. The timeline of stonewalling of the complaint through not one but two notices about it for DOJ and White House review are part of the cover-up process regarding its disclosure.

    The call itself is not the endgame of the larger Trump effort to withstand the results of the Mueller probe, but a signal of that ongoing work by various administration officials and agencies engaged in protecting Trump and carrying out his re-election plans by whatever means necessary. Understand, that just like a redacted Mueller Report, we’ve only been allowed to see an edited version of the Trump-Zelensky call.

    As I see it, not only did CIA and DNI counsel play a role in preventing the WB complaint from moving forward, but they were directed by other agencies at a level and during which two top DNI officials resigned and DOJ went on record claiming that the complaint did not have to be passed along for congressional oversight as spefically required under WB protections and law.

    This failure implicates every official connected to that effort. And that story must be told as part of the larger tale of Trump’s foreign affairs and re-election extortion scandal.

    In the aftermath of last week’s DNI public hearing, the press and pundits were bitching about domination of the process contexting as the centerpiece of the Democrat majority’s line of questioning, when that was the very essence of what now looks like clear-cut attempts to sidetrack and derail the complaint from every becoming known by anyone. Look at the timeline from when the whistleblower first acted and reactionary events that transpired in the wake of that. Maguire’s testimony was tainted by those issues regardless of his own knowledge and understanding of WB law and his responsibility in its application.

    • Savage Librarian says:

      If you have not yet read this article, it probably will make your eyes pop out even more:

      “I Was a Whistleblower. The Trump Whistleblower Is About to Go Through Hell.” – Dan Meyer, is managing partner of the Washington, D.C. office of Tully Rinckey PLLC.

      (After having read this article, I may have to reassess my opinion about Coates, and maybe Gordon.)


    • timbo says:

      Yes, it does implicate many officials who appear have ignored the law because of political expediency. And they need to be pulled up out of the dirt they’ve created to bloom in and removed from the government. Let’s hope the DP and independents in this country have had enough of the Trump regime and its criminal abuse of our nation’s laws.

    • harpie says:

      More about Rudy [via Wendy Siegelman]:
      3:36 AM – 2 Oct 2019

      OK, my Trump Inc colleague @ilyamarritz has been secretly reporting from Ukraine *this whole time.* He retraced Rudy’s steps, digging into the Ukrainians he’s has been working with Turns out, *they are the ones riddled w/ corruption*

      Listen/Read [ProPublica link] @WNYC

      A Brief Guide to Giuliani’s Questionable Friends in Ukraine Rudy Giuliani has been looking for “corruption” in Ukraine. It’s easy to find among the very people he’s befriended.
      Oct. 2, 4 a.m. EDT

  5. JVO says:

    Am I wrong to think that there is zero chance that the whistleblower’s counsel will ever get a security clearance because the President will order that he not get one?!

  6. Willis Warren says:

    Maguire obviously worked with the White House lawyers on the whole “outside” angle. It’s pretty sketchy, but Pelosi hasn’t hired competent legal counsel to do anything about it yet

  7. Savage Librarian says:

    bmaz, since you are out there in the cloud watching over us, if you have time and the inclination, could you give your opinion on this potential approach as stated in these excerpts from Cunningham’s article?

    “In an impeachment process against President Donald Trump, the House of Representatives could present the president with a request for admission to …simple factual statements.”

    “The House could give Trump a brief amount of time to respond, including providing any evidence that might disprove the allegations.”

    “If he refused to respond, or if he denied but refused to produce supporting documentation, the House could assume the set of alleged facts to be true and include them in articles of impeachment. Then the House could vote and, depending on the outcome of that vote, the matter would then proceed to the Senate for trial.”

    “Congress could engage in a long drawn-out battle trying to use its oversight and subpoena powers to force various executive branch officials to release documents or testify about what they saw, heard and did. Or they could try this simple and quick procedure, which does not require the cooperation of the Department of Justice or court action.”


    • bmaz says:

      Know a couple of folks at Georgia State, but don’t know that guy. I am told he is very smart.

      Frankly, I think it is a nutty proposition. There is no basis for using requests for admissions in an impeachment inquiry, they are a creature of normal civil cases. And once the case is sent to the Senate for trial, they are irrelevant.

      • Savage Librarian says:

        Thanks! I’m thinking he might have come up with this idea before the inquiry was a sure thing.

    • earlofhuntingdon says:

      Double Wow. Refreshing to see good gals and guys speak out without the hemming and hawing so common among leadership. This will be an all-hands-on-deck problem to solve long before the November 2020 election.

      It is hard to understate how corrupt it is to have two of the top three Cabinet members – the SecState and AG – act so at odds with their official obligations and abjectly support so thuggish a president. It is not normal. it is high-order corruption.

      • OldTulsaDude says:

        This cannot be simply about ideology. The real question, I think, is how many billions of dollars have been promised for an end to the Russian sanctions and how many hands and whose hands will be greased and with how much?

        • Vicks says:

          Maddow last night was doing her thing and explaining how everything points helping Russia.
          It never seems to be a simple as she claims but I can’t seem to unsee this one once she spelled it out.
          Trumps crew is hellbent on placing doubt that it was Russia that did the hacking and now after all this attention from Trumps crew, Ukraine just signed an agreement with pro-Russia separatists.
          I don’t know what to think. Everyone laughed when Trump said Ukraine and Russia were going to talk and now here we are.
          If the United States backs this move, the sanctions on Russia for invading Crimea would more than likely be removed and who knows what the heck they have accomplished with all this globe trotting on behalf of Barr’s investigation in the the investigation,
          I know I sound like a broken record but from the beginning when Barr launched it before getting even a draft of Horowitz’s report it seemed that they were on a mission. Too many people (Flynn being the primary) were doing stupid things that seemed to rely solely on Barr blowing up our institutions by unearthing evidence of a deep state.
          These are awful people, but many including Barr are far from stupid. It is unseemly that he is so personally invested.
          Lifting sanctions would be worth billions to Russia. How much helping Russia get their piece of Ukraine is worth, I don’t know. The thought of Russia offering a reward makes me sick, but look at how these a-holes are acting. What if there really is more to this than just getting Trump re-elected?

        • Rayne says:

          I estimated the value of Russia’s oil revenues lost after Iran’s oil was allowed back into the market in the billions, perhaps a trillion since oil dropped nearly 50-60% in price in late 2014 (can’t find my chickenscratching on this or I’d give better figures). This is enough to get somebody killed; it’s enough incentive to throw an election.

          This isn’t *just* about the sanctions. The removal of sanctions and undoing the Magnitsky Act would allow Russia to escalate oil development fast enough to replace the lost revenue AND move cash into Putin’s pocket.

          Keep in mind it’s not just Putin’s personal pocket but the country which hurts for the loss of revenue. The revenue loss may have been at the root of benefit reductions to retirees and an increased volatility inside Russia due to mounting frustration with Putin and corruption.

          • Vicks says:

            Yep, and we are sitting here watching our leaders at the highest levels including Mike Pence, Pompeo and Barr trotting around the globe in a campaign that clearly is an attempt to muscle up support so they can paint our most sacred institutions corrupt as a way to give Russia and Russia’s puppet Donald J. Trump redemption.

      • harpie says:

        1] https://twitter.com/HouseForeign/status/1179194685736271872
        5:41 PM – 1 Oct 2019

        BREAKING – @RepAdamSchiff, @RepCummings, and @RepEliotEngel warn @StateDept: any attempt by @SecPompeo to intimidate witnesses violates the law and is obstruction of the impeachment inquiry. Read the chairmen’s letter here [link]

        2] https://twitter.com/mcculloughirvin/status/1179198666617307137
        5:57 PM – 1 Oct 2019

        This letter is addressed to the Undersecretary because the Chairmen concluded @SecPompeo is conflicted from directing his employees in their investigation. It also cites the Whistleblower Protection Act.

        3] https://twitter.com/NoahShachtman/status/1179200106433789952
        6:03 PM – 1 Oct 2019

        EXCLUSIVE: Pompeo pushed out his own Ukraine rep, Kurt Volker, to try to squash this growing scandal. / “Volker was the easier guy to let go,” one former State Department official tells @ErinBanco. “But just because it is an easy choice doesn’t mean it is the right choice.”

      • earlofhuntingdon says:

        I believe we’re talking about an interview on MSNBC with Democratic Rep. Tom Malinowski from NJ. Calm, confident, knowledgeable, direct. The opposite of every political appointee in the Trump administration.

        Malinowski was a child immigrant from Poland, went to UC Berkekley and to Oxford as a Rhodes Scholar. He worked for both State (including its elite Policy Planning Staff), the NSC, and for Human Rights Watch before entering Congress.

      • Susan says:

        With a Master of Philosophy from St. Anthony’s, Oxford no less. We desperately need more people like him.

        • earlofhuntingdon says:

          In honor of the 40th anniversary of Alec Guinness’s first turn as George Smiley, from Tinker, Tailor (1979):

          “Of course St. Anthony is red brick. It doesn’t make the slightest difference there’s a bit of sandstone in the same street.”

          – Roddy Martindale, being a shite, as he and Smiley leave his club together.

        • earlofhuntingdon says:

          A newer constituent college of Oxford University (c. 1950), St. Anthony’s specializes in international relations and area studies, once considered newfangled and Americanish.

  8. klynn says:

    A little OT
    So, let me see…
    1. A tier of RU spies infiltrate the Trump campaign
    2. One, Prof Misfud, – the least influential contact but strategic to RU for one of a number of storylines, disappears.
    3. RNC platform changes on Ukraine
    4. Trump elected – MI makes it possible
    5. Investigation / Special Counsel cannot complete their work because the president will not answer questions
    6. AG says FBI and CIA are bad and must be investigated – because the pres complaines “not fair” when it becomes clear the Pres has his own security issues from his own actions
    7. Whistleblower, after SC comes forward.
    8. Same time whistleblower comes forward all the RU resources kick into gear to deliver a narrative complete with deep fake “evidence” that is all delivered by RU spies In an effort to discredit the Special Council investigation and evidence, further discredit the past dem pres candidate and discredit the current leading dem candidate.
    9. Our own AG will end up duped by RU spies pretending to be double agents but really only doing Putin’s work by discrediting our intel officers doing the best intel on RU (because pres asked for list of intel officers for mapping the takedown)
    10. Our Sec of State takes a known paid-off-by-the-Mercer-white-supremicist to be private “media” coverage of a faux spy-based narrative against both dems, FBI and CIA agents – against those who really know what is going on in Russia.
    11. So our own GOP government leaders will end up destroying the lives of long time dedicated intel agents to save their party leaving us with no institutional history in CIA and FBI; thus, handing us over to Putin
    12. The only trip that should have been made was to the Netherlands – at least they have “real time” evidence that would confirm that our agents know what they are doing.

    • earlofhuntingdon says:

      Mike Pompeo appears to have been a creature of the Koch Machine since he returned to Kansas four years after leaving HLS.

  9. Marinela says:

    Steve Linick volunteered to testify to Congress today, in urgent meeting.
    Really curious about this development.

    Initially, the reporting on the Ukraine scandal said it involved a “promise” Trump made to a foreign leader.
    The WH memo releasing the discussion between Trump and Z. does’t show the promise Trump made, unless it was hidden, or it happened in a different call.

    • Thebuzzardman says:

      Steve Linick has some history being in opposition to Maria Stull, which is a good thing.


      “Given the apparent potential of that information, it’s worth a look at Linick’s history.

      That history, as it happens, includes very recently calling out the alleged politicization of at least one area of the State Department. As The Post’s Karen DeYoung reported in August:

      A report by the State Department’s inspector general concludes that leadership of a leading department bureau mistreated and harassed staffers, accused them of political disloyalty to the Trump administration, and retaliated against them.In response to repeated counseling by more senior State officials that he address staff concerns, the report concluded, Kevin Moley, assistant secretary for international affairs, “did not take significant action.”The report, released Thursday, is a sweeping condemnation of Moley and more specifically of his former senior adviser, Mari Stull. A former lobbyist and consultant for international food and agriculture interests, Stull left the department in January following press reports that, among other things, she had compiled a list of staffers deemed insufficiently loyal to the Trump administration.Stull, it said, referred to some employees as “Obama holdovers,” “traitors,” or “disloyal,” and accused some of being part of the “Deep State” and the “swamp” — terms that President Trump has used to refer to federal employees. All of those so accused, the report said, were career staffers and not political appointees.
      Linick is one of relatively few remaining holdovers from the Obama administration — a fact that will probably lead to accusations of political bias if he produces information that is damaging to the administration. But by law, inspectors general are required to be politically independent.

      Linick is also a former nominee of the George W. Bush administration and top official in the Bush Justice Department. After serving as an assistant U.S. attorney in the 1990s and early 2000s, he took on key Justice Department roles that included rooting out contract fraud in the Iraq and Afghanistan wars.”

      • Marinela says:

        Thank you for the feedback.

        Even if a new democratic administration wins in 2020, there will be so much damage done to the institutions, damage that is subtle, not obvious, such a mess.

        Being loyal to Trump can also qualify as deep state just the other way. Whatever they are claiming the others are doing, they are doing it themselves.

  10. sand says:

    “President has sole authority . . . ”

    I’ll risk some alarmism here. As President Trump spent today tweeting profanely, accusing a congressman of treason, threatening the press, and generally acting like a person with a serious mental disorder, even for him, we might remind ourselves that the president still has the sole authority to launch a nuclear attack.

    Mattis is gone. Kelly is gone. Trump has already threatened that removing him would be like a civil war. His closest advisors, Pompeo, Mnuchin, Mulvaney, the Kushners, Giuliani, and Hannity do not appear to be people with any significant character or morals. We rely only on the Pentagon to disobey unjustified orders from the president.

    Who knows what the probabilities are with a person like Trump in a situation like this? Not me. Republicans need to get on board with impeaching and removing Trump now. Dragging this out is too great a risk. We’ve always feared that rogue actors could get their hands on nuclear weapons. A president who accuses a congressman of treason for a speech made on the House floor seems to meet the definition of a rogue actor to me. Alarmist perhaps.

    Some analysis: https://warontherocks.com/2019/07/donald-trump-and-presidential-nuclear-launch-authority-the-more-things-change/

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