Legal experts say Stephen Bannon may face a challenge in his security clearance as President Trump’s now-former chief strategist returns to his pre-White House career as executive chairman at the media company Breitbart.
“People with Top Secret clearances are bound by a non-disclosure agreement (NDA) for life,” said Bradley Moss, a partner at the Law Office of Mark Zaid specializing in national security and security clearance law.
“Any time Breitbart now prints classified information they might now be required to clear it with the government,” according to Moss.
Moss later clarified that because of the NDA with Bannon, Bannon would be personally responsible to clear anything he “wrote, formulated or provided to one of his reporters” and the paper might face scrutiny for anything that appeared to be a conflict.
The Trump administration announced Bannon’s ouster midday Friday, and Bannon says he resigned. The move appears to be at least in part due to a long-standing, contentious internal rift between Bannon and other populists on Trump’s staff and more mainstream voices like Trump son-in-law and adviser Jared Kushner.
Bannon almost immediately resumed his role at Breitbart, a publication Bannon once described as a platform for the alt-right.
News outlets frequently report on classified information they believe to be in the public interest. Historically important stories, including Pulitzer Prize winning work on the Vietnam war and NSA bulk surveillance, have been entirely dependent on classified files.
On Twitter, Susan Hennessey, a former attorney in the Office of General Counsel of the National Security Agency and current managing editor at the commentary website Lawfare, noted Bannon’s obligations go beyond simply not revealing classified data he would have been privy to.
“Bannon not only has prepublication obligations, he also has a legal duty to report if he ever learns of a classified leak. I’m able to work @lawfareblog because, unlike media outlets, we do not & will not publish classified info. Will Breitbart have same policy?” she wrote on Twitter.
There are other media personalities who have had security clearances, noted Moss, including the television host George Stephanopoulos. Enforcement of the non-disclosure agreement is often a function of what law enforcement decides to let someone get away with, she suggested.
But, she said, Bannon’s significance at the White House and near immediate transition from the White House to a role in breaking news from an administration that has so recently declared war on leakers might combine to present unique problems.
“If Breitbart suddenly gets a few scoops, it will be interesting to see how the Department of Justice will reply,” said Moss.
Moss suggested that Breitbart might create an organization structure sequestering Bannon from stories that could potentially expose him to trouble.
Breitbart did not respond to The Hill’s request for information on how it planned to maneuver around issues related to Bannon’s security clearance.