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Rob Porter scandal: Kelly taking heat, but what about McGahn?

Experts say that under the typical process, White House counsel Don McGahn would have been alerted early in the process about problems with Rob Porter.

The White House security clearance process is under scrutiny amid conflicting accounts from the FBI and the White House over who knew about domestic abuse allegations against former staff secretary Rob Porter — and experts say White House counsel Don McGahn’s role deserves further examination.

After FBI Director Chris Wray told a congressional committee on Tuesday that the bureau had reported the allegations to the White House in July, White House Press Secretary Sarah Huckabee Sanders told reporters that a personnel office handling White House security clearances was to blame for withholding the information.

"This is a process that doesn’t operate within the White House. It’s handled by our law enforcement and intelligence community," Sanders said, although the personnel office actually does operate under the aegis of the White House.

Legal experts and former officials said that under the typical process, McGahn would have been alerted early in the process about the problems with Porter — which unleashed a scandal that has put White House Chief of Staff John Kelly on the defensive.

"This would have been sent to McGahn’s desk as soon as the personnel office heard about it," said a former administration official who dealt with hiring staff in the Obama White House.

Further, the experts said, it would normally be McGahn’s responsibility to alert the president and chief of staff that Porter was not fit to receive classified information.

"The decision about someone who has substantiated claims of domestic abuse is not a hard one in the security clearance context," said Mary Kuntz, a lawyer who defends clients with negative findings in background investigations.

Typically, an applicant for a White House job requiring a security clearance follows this process:

  • The FBI reviews their financial records, foreign contacts and criminal history and makes a preliminary decision as to whether they can receive an interim clearance.
  • Then, after a more thorough review including interviews with past contacts, the FBI compiles a report of its findings. If a claim against the applicant is substantiated, it goes into a report that the FBI hands over to the White House personnel office.
  • That office adjudicates the findings and makes a determination as to whether the person should receive the security clearance.
  • If there are problems with the applicant, the personnel office alerts the White House counsel’s office, who would in turn communicate with the White House chief of staff.

The president can override any decision made by the personnel office, granting full clearance to any applicant, regardless of findings.

It’s not clear if President Donald Trump decided to override the decision on Porter. It’s also not clear if the Trump administration is including McGahn in the process as much as White House counsels have been involved in the past.

"Usually the counsel’s office is very involved, but it’s not clear how much the current White House counsel’s office is involved," said Brad Moss, a lawyer who specializes in litigation matters related to national security and federal employment.

Moss said that it is uncommon for a review of a person applying for a position as high as Porter’s to take so long.

"A lot of us have been skeptical about why that would happen with the White House staff. They are supposed to be given high priority for the obvious reason that you need to staff the president properly," Moss said.