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When it comes to security clearances, rules for others don’t apply to Congress

GOP hawks fomented rioters but still oversee classified programs

Lawmakers are privy to some of the country’s most sensitive information, from domestic terrorism threats to military operations overseas, regularly receiving briefings in secure rooms in the Capitol complex from federal and military officials with high-level clearances.

But in the wake of the Jan. 6 riots at the Capitol, some are asking whether certain members of Congress, including Republican leaders of defense and intelligence panels, would meet even the minimum standards for a government official to hold a security clearance.

“Being cleared requires allegiance to the U.S. Government and Constitution of the United States at a bare minimum,” Rep. Ruben Gallego, an Arizona Democrat who serves on the House Armed Services Committee and who fought with the Marine Corps in Iraq, said in a statement to CQ Roll Call.

Unlike officials at federal agencies, lawmakers do not have security clearances per se, experts said. Rather, members of Congress are by tradition deemed inherently trustworthy by dint of the offices they hold, although they are subject to punishment under the House ethics code for revealing classified information. The maximum penalty, which would require a two-thirds vote by the House, is expulsion.

Neither their fellow lawmakers nor any president could take that fundamental presumption of trustworthiness away from them.

“If they remain Members, then they retain eligibility for access to classified information,” Steven Aftergood, a leading expert on government secrecy with the Federation of American Scientists, said in an email. “But if they engaged in constitutionally prohibited actions, then they should be expelled from Congress altogether.”

Security concern?

Seeking to overturn a free and fair election or even supporting groups or people who do, fostering lies that foment insurrection or stoking a crowd to use force would be causes for concern for a government official seeking a clearance, if not disqualifying factors, according to several observers.

“An agency employee who was involved in illegal activity or who incited others to illegal activity would almost certainly lose his clearance,” Aftergood said. “It wouldn’t even be a question of whether a crime had been committed, but rather whether the individual demonstrated rational good judgment. If he did not, he should not be handling classified information.”

Critics argue those are essentially the behaviors that numerous members of Congress have engaged in for many weeks, a campaign of disinformation and rabble-rousing that fueled the Jan. 6 attack and then, hours later, included voting to block certified Electoral College ballots.

Such a vote was entirely legal, but casting it helped cement the widespread and false impression that the fair election was fraudulent.

Some members went even further, riling up the Jan. 6 mob with tweets and speeches about combating their allegedly corrupt fellow lawmakers — fighting words that were often expressed in religious terms.

John Berry, another veteran practitioner of security clearance law, suggested the actions of some members of Congress would raise eyebrows, at a minimum, if they occurred in a typical security clearance review.

“If any government official was found to have tried to thwart a constitutional process such as certifying an election or incited a mob or engaged in the misuse of social media to spread false information, it would raise significant security clearance concerns,” Berry said via email. “The same standard should apply to members of Congress, even though they do not, strictly speaking, have security clearances.”

House Speaker Nancy Pelosi, at a Jan. 8 news conference, called for accountability for Republicans who “promoted the extreme conspiracy theories that provoked the violence, encouraged the mob and who, after desecration of the Capitol, went back to the House floor and continued to push the falsehoods that underpinned this assault on our democracy.”

It is not yet clear, though, what consequences might be coming, if any, for those members.

Rep. Cori Bush of Missouri and 46 other Democrats have backed a resolution calling for an Ethics Committee investigation into whether those lawmakers violated their oath of allegiance to the Constitution.

There are also calls for the House to censure certain members.

But restricting their access to classified information is not going to be one of the congressional responses because, short of expulsion, there is nothing Congress can do.

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Voting against voters

Nearly 150 representatives and senators voted hours after the Capitol riot in favor of motions that would have blocked validation of the election results in Arizona and Pennsylvania.

The lawmakers justified their anti-democratic moves by using specious claims about maintaining voting integrity or about responding to constituents’ concerns — referring to worries that those members had a big hand in creating.

Those voting in the House to block the election results included leading members who oversee national security programs, including classified programs executed by people who had to pass security clearances.

Virtually all the most senior Republicans on the Armed Services Committee voted to contest the November vote. These members included Mike D. Rogers of Alabama, the incoming ranking member of the full committee, plus all but one of the subcommittee ranking members: Doug Lamborn of Colorado, Trent Kelly of Mississippi, Vicky Hartzler of Missouri, Joe Wilson of South Carolina, Elise Stefanik of New York and Rob Wittman of Virginia. Michael R. Turner of Ohio was the exception.

Two other Armed Services Republicans, Matt Gaetz of Florida and Mo Brooks of Alabama, are among the most fervent voices in the campaign to undermine the 2020 vote.

Four GOP members of the House Intelligence Committee voted to block either the Arizona or Pennsylvania electoral votes: Stefanik, Rick Crawford of Arkansas, Chris Stewart of Utah and Devin Nunes of California.

Two Senate Armed Services members voted to at least delay certification of the presidential election: Josh Hawley of Missouri and Rick Scott of Florida.

Rousing rabble

The campaign to create the false impression about the election culminated on Jan. 6 when President Donald Trump, at a downtown Washington rally, called upon his followers to assemble at the Capitol and “fight.”

Trump was backed up by numerous members not at the rally who had supported his disinformation, including with cries that it was a “1776 moment.”

At the rally itself, Trump was preceded at the podium by, among other speakers, Brooks, who riled up the cheering crowd with a call to “fight for America” against a “godless, amoral, dictatorial, socialist” enemy — a reference to his fellow lawmakers.

“Today is the day American patriots start taking down names and kicking ass,” Brooks declaimed. “Our ancestors sacrificed their blood, their sweat, their tears, their fortunes and sometimes their lives to give us, their descendants, an America that is the greatest nation in world history. So I have a question for you. Are you willing to do the same?”

Brooks later issued a statement saying he had not meant to encourage violence, which he said he strongly condemned. Brooks’ spokesman did not reply Tuesday to an email seeking comment.

New Jersey Democratic Rep. Tom Malinowski has offered a resolution “condemning and censuring” Brooks.

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