DOJ says judge overstepped by restoring Mark Zaid’s security clearance
The Justice Department has asked the U.S. Court of Appeals for the D.C. Circuit to overturn a district court’s order that restored national security lawyer Mark Zaid’s security clearance, arguing that decisions about access to classified data are within the executive branch and not subject to judicial review.
In December, U.S. District Judge Amir A. Ali ordered the government to reinstate zaid’s clearance, finding that the March memorandum revoking it appeared to be retaliation and did not provide a proper individualized national-security assessment, violating due process and First Amendment rights. The DOJ contends that the president has broad authority over who may access sensitive material and that courts lack standards to evaluate such executive decisions; it also notes that no one has a legal entitlement to a security clearance.
The appellate brief, filed by Associate Attorney General Stanley Woodward Jr. and Deputy Associate Attorney General Abhishek Kambli, relies on long-standing Supreme Court precedent, including the 1988 decision in Department of the Navy v.Egan, to argue that Article II vests the president with control over classified information. Zaid, a longtime national-security attorney who has represented whistleblowers, is represented by Abbe Lowell in other matters. An oral argument in the appeal has not yet been scheduled.
Judge overstepped by ordering Mark Zaid’s security clearance restored: DOJ
The Justice Department this week asked a federal appeals court to reverse a district judge’s order restoring national security lawyer Mark Zaid’s security clearance, arguing the ruling improperly intruded on presidential authority over classified information.
In a brief filed Wednesday with the U.S. Court of Appeals for the District of Columbia Circuit, the Trump administration argued that decisions about who may access sensitive national security material are constitutionally within the executive branch’s purview and are not subject to judicial second-guessing.
“The Constitution commits the question whether to deny or revoke a security clearance to the Executive Branch,” government lawyers wrote, arguing courts lack authority to review such determinations. 
Zaid is a longtime national security attorney who has represented intelligence officials, federal employees, and whistleblowers in disputes with the government. He gained national prominence for representing the whistleblower whose complaint about President Donald Trump’s dealings with Ukraine helped trigger Trump’s first impeachment, and he has continued to represent whistleblowers during Trump’s second term.
The dispute stems from a March presidential memorandum directing agencies to revoke the security clearance of Zaid and 36 others after Trump determined it was no longer in the national interest for them to access classified information. Federal agencies subsequently implemented that directive and cut off his access.
Zaid had maintained a security clearance for more than two decades as part of his legal practice. In the midst of his first impeachment threat, Trump said at the time Zaid “should be sued and maybe for treason,” emphasizing the president’s long-standing disapproval of the lawyer.
In December, U.S. District Judge Amir Ali, an appointee of former President Joe Biden, issued a preliminary injunction ordering the government to restore Zaid’s clearance. Ali found the administration acted in “retribution” and without providing the kind of individualized national security assessment typically used in clearance decisions, concluding Zaid was likely to succeed on constitutional claims tied to due process and free speech.
The DOJ called Ali’s decision an “extraordinary order” that overrode the president’s judgment on national security matters.
“The District Court rested its order on purported First Amendment, due process, and right-to-counsel violations by the President in rescinding Plaintiff’s security clearance and rejected the government’s argument that Plaintiff’s challenge to the revocation of his security clearance is non-justiciable under Egan,” government attorneys wrote, citing a 1988 Supreme Court decision that held the Merit Systems Protection Board cannot review the merits of a security clearance revocation.
The appellate brief was filed by Associate Attorney General Stanley Woodward Jr., a former personal attorney to Trump allies, and Deputy Associate Attorney General Abhishek Kambli.
Relying on long-standing Supreme Court precedent, the administration argued Article II gives the president authority to control access to classified information and determine whether an individual is trustworthy enough to receive it. Courts, the brief says, lack standards to evaluate those predictive national security judgments, even when plaintiffs frame their challenges as constitutional claims.
At the bottom of its filing, the government maintained that no one has a legal entitlement to a security clearance, which is granted at the executive’s discretion to safeguard sensitive information.
DOJ SEEKS PAUSE IN LAW FIRM EXECUTIVE ORDER CASES, PENDING DECISION IN MARK ZAID APPEAL
Zaid is represented by Abbe Lowell, a veteran Washington attorney who’s taken on a slew of cases since Trump’s return last year. Some of those clients include New York Attorney General Letitia James in her now-dismissed mortgage fraud criminal case and former Trump national security adviser John Bolton in his case involving alleged willful retention and unlawful transmission of national defense information.
An oral argument concerning the government’s appeal has not yet been scheduled.
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