America has spent the past decade relearning an old truth: Few things are more corrosive to our democracy than the suspicion that U.S. intelligence and law-enforcement agencies are playing politics.
The most egregious example came in the waning days of the 2020 presidential election, when the New York Post published damning excerpts from a laptop left by Hunter Biden in a Delaware repair shop. Seeking to squash the story, 51 former U.S. intelligence officials fired off an open letter claiming the reporting had “all the classic earmarks of a Russian information operation.”
The letter effectively killed the story. Few media outlets even examined the laptop’s contents. Twitter and other social-media platforms suppressed the Post’s piece, and some even banned users from sharing or commenting on it in the runup to Election Day.
We now know the letter was a partisan hit job. Emails obtained by congressional investigators show that the former intelligence officials who organized it were helping to execute a Biden campaign strategy. The lead organizer, former acting Central Intelligence Agency Director Michael Morell, worked directly with Mr. Biden’s campaign to give the Democratic candidate “a talking point to use” in the final presidential debate. In addition, the Biden campaign helped coordinate the letter’s dissemination to major media outlets, ensuring that stories would highlight the national-security credentials of its signers.
The 51 officers were trotting a well-worn path. For four years, former intelligence-agency heads James Clapper and Michael Hayden used their credentials to condemn President Trump as a Russian asset or a “useful fool.” A third, John Brennan, invoked “information and intelligence” he received while at the CIA to support suspicions that Mr. Trump’s campaign had conspired with the Russians.
The Hatch Act prohibits federal employees from using their official positions to engage in partisan political activities. Recognizing the heightened danger of politicizing intelligence and law enforcement, Congress “further restricted” employees of the CIA, Federal Bureau of Investigation, National Security Agency and similar agencies by barring them from participating in political campaigns—even on their own time or in their personal capacities.
If the letter’s signatories had still been on the federal payroll, the Hatch Act would have prevented them from aiding the Biden campaign. Once they left government, however, the Hatch Act ceased to apply. They were free to invoke their intelligence credentials to craft political talking points.
Congress can end this bad behavior. As part of an effort to depoliticize the intelligence community, lawmakers should extend the Hatch Act’s restrictions to senior intelligence officials who continue to hold security clearances after they’ve left government. Postgovernment clearances are meant only to serve the government’s interests, but when senior officials enter the private sector, they routinely retain security clearances as a perk, which allows them to advise their old agencies and also pursue high-paid consulting gigs.
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An extension of the Hatch Act would be a restriction of these senior officials’ First Amendment rights, but the Supreme Court explained in U.S. Civil Service Commission v. National Association of Letter Carriers (1973) why special restrictions on certain government jobs are constitutionally justified: “It is not only important that the Government and its employees in fact avoid practicing political justice, but it is also critical that they appear to the public to be avoiding it, if confidence in the system of representative Government is not to be eroded to a disastrous extent.”
That concern is still valid. The public also has a compelling interest in avoiding unverifiable and corrosive claims that argue for or against the election of a particular candidate. That interest outweighs a limited restriction on the speech of former senior officials, all of whom could engage in political activity if they relinquished their security clearances.
More reforms will be necessary to restore trust and confidence in America’s national-security bureaucracy. But Congress can take an important step to address the politicization of intelligence by ensuring that former senior officials stay out of politics while they have access to our nation’s secrets.
This piece originally appeared in the Wall Street Journal on June 28, 2023
