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Why did Rob Porter lack a permanent security clearance? Here’s how the process works

The White House and the FBI have shared conflicting accounts on the timeline of the background investigation into former White House staff secretary Rob Porter, who lacked a permanent security clearance and faced allegations of domestic abuse. How was the process designed to work? Judy Woodruff learns more from attorney Mark Zaid.

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  • Judy Woodruff:

    And now back to the fallout over a top White House aide’s resignation in a domestic abuse scandal.

    There are evolving accounts from the White House on the timeline of the background investigation into former White House Staff Secretary Rob Porter, after FBI Director Robert (sic) Wray offered his own today.

    To help us understand how it’s all supposed to work, we are joined by Mark Zaid. He’s a Washington, D.C., lawyer who specializes in security clearances.

    Mark Zaid, welcome to the “NewsHour.”

  • Mark Zaid:

     Thank you.

  • Judy Woodruff:

    So, based on everything you have heard about this case involving Rob Porter, how much do you believe the White House should have known about his background when all these decisions were being made?

  • Mark Zaid:

     Well, the White House should have known actually as soon as he put in what we call an SF-86, which is the standard questionnaire for national security positions, because Porter, who probably put this in at the end of 2016, would have had to have revealed that he had received a protective order against him by one of his ex-wives.

    Now, if he didn’t put that down on the form — and we don’t know one way or the other — then the FBI, we know, interviewed one or both his ex-wives in January of 2017. And what we learned from Christopher Wray’s testimony today, the FBI director, is that the FBI provided an interim report, as you indicated, in March of 2017, which means the White House would have known in March of 2017 that there were some serious problems.

  • Judy Woodruff:

    And we saw there were several different intervals when the FBI was giving information to the White House as recently as this month, Director Wray was saying. Does that tell you anything?

  • Mark Zaid:

     Well, so, what we know, for example, the FBI would have gone and done an extensive background investigation, interviewed, like I said, the ex-wives, also gone to the courthouse to find out information about the protective order, also talked to Porter himself.

    When that investigation was completed by July of 2017, the White House had some questions, I suspect, because they went, as we have heard some reports that the chief of staff went and talked to Porter and said, look, we have these allegation against you. What are your explanations?

    And we have seen some public reports that they had felt he misled them. Based on whatever happened in those summer months, they asked the FBI to go back and get more. More information came in. Basically, we have got about three or four opportunities that the White House knew enough information to make not only a clearance decision, but a suitability determination, did they want someone like Porter in the White House?

  • Judy Woodruff:

    Well, that gets to a question, because the suggestion has been up until today that it was the FBI that was holding up this information, that the White House was waiting, in other words, for more information.

    Today, we understand from the White House that, once we clarify that the FBI doesn’t give security clearances, that’s something that’s done in the White House, the White House is now saying, on, it was done in this Office of Personnel Security.

    So where is — where are decisions made about who gets clearance or not?

  • Mark Zaid:

    So, the White House has its own office of security in the administrative part of the White House. They determine secret and top-secret clearance levels.

    He had an interim clearance, which is a very normal process within the system. That’s not an issue. They adjudicate — the White House adjudicates the actual clearance.

    What we call SCI, sensitive compartmented information, is done by the intelligence community, normally the CIA. We don’t know specifically in this case. But the White House itself makes this determination.

    Now, these are usually career staffers, and I doubt they’re the problem in this case.

  • Judy Woodruff:

    Right.

  • Mark Zaid:

    When the FBI would have provided the interim report and the final report, the Office of Security would share that with the Counsel’s Office, the White House Counsel’s Office, for the suitability determination.

    We have both determinations, two of them at once.

  • Judy Woodruff:

    Right.

  • Mark Zaid:

    And that means the political people get involved.

  • Judy Woodruff:

    How common is it for the White House to allow someone who has this kind of a problem in his or her background to serve in a high-level job, to have a security clearance?

  • Mark Zaid:

    It’s more common than it used to be.

    Outside the White House, it’s quite common to have an interim clearance for a long period of time because there is a long backlog in the investigations. The higher up you go in positions like the White House, the more likely you’re not to have an interim clearance for a long period of time, because the White House actually has been quite good over the years when I have dealt with them.

    When they identify a problem, they have given the individual an opportunity to resign, rather than receive an adverse, negative security clearance determination.

  • Judy Woodruff:

    And the other question I have, is it how — so how normal is it for someone to be operating for 13 months on an interim clearance?

  • Mark Zaid:

     That itself doesn’t faze me. The notion of having an interim — we need to know a lot more facts. That’s, of course, always the problem.

  • Judy Woodruff:

    Sure.

  • Mark Zaid:

    And, quite frankly, the fact that we’re talking about information about Porter is inappropriate, because none of this information should ever have been leaked from the White House. This is very sensitive information for him.

  • Judy Woodruff:

    Finally, Mark Zaid, what I understand you saying is if there was a decision that had been made to allow Rob Porter to continue to work at the White House — and there are even reports that they were considering him for a promotion — that would have been a decision made by someone in a political role at the White House, not by a career civil servant.

  • Mark Zaid:

    At some point in time, certainly on the suitability side, it is by the political people.

    Now, we have to understand the president of the United States has the utmost authority. He can waive any type of rules in his discretion. We don’t know yet, of course, what role the political appointees played vs. the career civil servants. But we know the White House knew of this information and didn’t act on it.

  • Judy Woodruff:

    Well, still many questions out.

  • Mark Zaid:

    Many.

  • Judy Woodruff:

    Mark Zaid, thank you very much.

  • Mark Zaid:

    Thank you.

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