Judge Says Trump Can’t Strip Lawyer’s Security Clearance Just Because He Doesn’t Like His Clients

from the because-of-course-you-can’t dept

Donald Trump has an enemies list. Not a secret one, either. It’s actually been published at the official White House website. But he has plenty of enemies beyond that. And ever since his return to office, he’s been engaged in acts of vengeance. Federal agencies have been purged of anyone who isn’t a MAGA loyalist. Journalistic entities have been threatened, sued, and — most recently — been placed under the “leadership” of people who serve Donald Trump, rather than their actual employers or the journalistic standards they’re supposed to uphold.

He’s also gone after a number of law firms who’ve represented people suing Trump and the administration. He’s also targeted lawyers who represent people he personally doesn’t care for, like the FBI agents who investigated the January 6, 2021 insurrection attempt by his supporters.

Mark Zaid has represented a number of clients, including national security whistleblowers during the Obama years. In contrast to Trump’s opportunistic thuggery, Zaid doesn’t have a political ax to grind when he chooses to represent someone in court. All Trump has is political axes in need of grinding. Since he can’t fire Zaid directly, he’s doing what he can to make it more difficult for him (and others on the president’s neverending shitlist) to represent current and former government employees.

Eisen and Zaid, the lawyers representing the FBI agents, themselves became the target of a presidential memorandum in March that revoked their access to classified material. Both have aggravated Trump for years. Zaid represented a whistleblower who helped bring about Trump’s first impeachment.

Zaid sued to restore his security clearance in May, in a case that is ongoing. His lawyer, Abbe Lowell, is a high-profile defense attorney who left Winston this spring in order to form his own firm. Lowell said his goal is to represent those “unlawfully and inappropriately targeted.” New York Attorney General Letitia James, who won a fraud judgment against Trump and is now a target of his DOJ, was one of his first clients.

Fortunately for Zaid, he’s one step closer to getting his security clearance restored. DC federal court judge Amir Ali says [PDF] what’s immediately obvious: the president can’t just revoke security clearances simply because he doesn’t like a lawyer’s clientele. That’s a violation of First Amendment rights and that still doesn’t fly here in the US, despite Trump’s continuous efforts to make every right dependent on loyalty to the president.

It’s so obviously a violation of rights that even the government doesn’t try to rebut Zaid’s main argument. Instead, it tries to argue that the president is pretty much a king and can do whatever he wants when it comes to determining who gets to do what in this nation:

This case involves the government’s retribution against a lawyer because he represented whistleblowers and other clients who complained about the government, carried out by summarily canceling the attorney’s security clearance without any of the process that is afforded to others. In defending its actions, the government does not meaningfully rebut that the decision to deny this attorney the usual process was based on his prior legal work for clients adverse to the government.

The government instead asserts, emphasizes, and repeats that the executive branch has exclusive power to determine who meets the requirements for security clearance. […] That is well established, but does not answer the question in this case. It is equally well established that the executive branch’s exclusive power to determine who satisfies the eligibility criteria for security clearance does not mean it can conduct that determination however it wants and free from the Constitution’s limits.

If you need more evidence that this is nothing more than blatantly unconstitutional vindictiveness, you’ll find it in Judge Ali’s 39-page opinion. Zaid, who has held a security clearance for the last two decades, first angered Trump in 2019, bringing forward a whistleblower complaint that led to the House filing articles of impeachment. Here’s how Trump reacted to that:

When Zaid’s representation of the whistleblower became public, the President publicly rebuked him, including by showing Zaid’s photo at a 2019 rally and calling him a “sleazeball.” The President later said: “And [the whistleblower’s] lawyer, who said the worst things possibly two years ago, he should be sued and maybe for treason. Maybe for treason, but he should be sued. His lawyer is a disgrace.”

Here’s how things were going earlier this year, when Zaid again crossed Trump’s angry radar:

More recently, in February 2025, Zaid filed a lawsuit against the government on behalf of several Federal Bureau of Investigation employees to protect them from being targeted for work they did investigating the January 6 attack on the U.S. Capitol. Four days later, a news source reported the President was planning to target Zaid, among others, by revoking his security clearance. The next month, the Director of National Intelligence announced on social media that she had revoked Zaid’s and others’ security clearances and access to classified information. And on March 22, 2025, the President issued a presidential memorandum to executive agency heads that included Zaid among a list of people for whom access to classified information was “no longer in the national interest.”

The government insisted the administration has the unilateral right to revoke clearances. The court agrees… to a point. But when clearances are revoked (or even denied), there’s a process involved that allows the person on the receiving end of this clearance stripping to appeal or challenge that decision. At the very least, they’re allowed to ask why. This summary stripping of security clearance from multiple lawyers at one time is obviously a rights violation (due process) that compounds the other alleged rights violation (free speech).

Based on the preliminary injunction record, the court finds the government has not conducted any individualized assessment of Zaid’s eligibility for security clearance. It instead denied Zaid the process and individualized assessment afforded to others because of his prior representation of whistleblowers and other clients in matters that were adverse to the government.

[…]

Because Zaid’s claims all challenge the legality of revoking his security clearance without meaningful process, they go only to the “methods used” to revoke his clearance.

The government pretends this is simply about denying access, which it can do. But it isn’t. It’s about selectively removing access, which isn’t really about the security clearance process, but whether or not the government can use the process to engage in retaliatory action against people it doesn’t care for.

So it tried this:

As mentioned, the government’s principal approach here has been to offer an expansive reading of the cases it likes (Egan and Lee) and to leave out the cases it doesn’t (Greenberg and Rattigan).

And ends up with this after Judge Ali parses the cited cases the government really wishes he wouldn’t have read so closely:

[E]ven the cases the government selectively quotes from recognize the line between “ends and means.

Furthermore, the court practically invites every other lawyer named in the White House memo to get busy suing over their stripped clearances:

The government, second, asks the court to just construe the presidential memorandum as an individualized national security assessment. But the court finds the memorandum was not based on any such assessment. It is undisputed that no government agency conducted an assessment of Zaid’s eligibility for clearance, and the memorandum itself does not purport to make any national security assessment—in fact, it does not mention national security at all. The memorandum instead directs agencies to summarily revoke Zaid’s clearance based on the “national interest,” which courts have consistently recognized as distinct from and more nebulous than a particular determination about national security.

Zaid wins, for now. The government has until December 30 to challenge the injunction. If it can’t raise a better argument than it has here (and there’s no reason to believe it can), Zaid’s clearance will be un-revoked on January 13, 2026. And the others who were targeted by the White House memo need to lawyer up and get their clearances back too. Certainly, the administration will try to get the Supreme Court to undo this, but for now, the clock is ticking.

Filed Under: 1st amendment, donald trump, fbi, january 6, lawfare, mark zaid, retaliation, trump administration, whistleblowers