The Justice Department filed an appellate brief Wednesday, urging the D.C. Circuit to overturn a federal judge's order that forced the government to restore the security clearance of Mark Zaid, the national security lawyer best known for representing the whistleblower behind President Trump's first impeachment.
The brief, filed by Associate Attorney General Stanley Woodward Jr. and Deputy Associate Attorney General Abhishek Kambli, called the lower court ruling an "extraordinary order" and argued it trampled on presidential authority that the Supreme Court settled nearly four decades ago, the Washington Examiner reported.
At its core, the DOJ's argument is simple: the president decides who gets access to classified information. Not a district judge. Not a lawyer who thinks the clearance is essential to his practice. The president.
The government's brief invoked the 1988 Supreme Court decision in Department of the Navy v. Egan, which held that the Merit Systems Protection Board cannot review the merits of a security clearance revocation. The principle is straightforward: access to classified material is a privilege rooted in executive authority under Article II, not a right subject to judicial second-guessing.
Government lawyers told the appeals court plainly:
"The Constitution commits the question whether to deny or revoke a security clearance to the Executive Branch."
U.S. District Judge Amir Ali, a Biden appointee, saw it differently. In December, he issued a preliminary injunction ordering the government to give Zaid his clearance back, finding that the administration had acted in "retribution" and had failed to provide the kind of individualized national security assessment typically used in clearance decisions. Ali concluded Zaid was likely to succeed on constitutional claims tied to due process and free speech.
The DOJ brief pushed back directly, noting that Ali's order "rested 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."
No one has a legal entitlement to a security clearance. That's not a new conservative talking point. That's settled law.
Zaid is a longtime national security attorney who has represented intelligence officials, federal employees, and whistleblowers in disputes with the government. He maintained a security clearance for more than two decades as part of his legal practice. His most prominent client was the anonymous whistleblower whose complaint about Trump's dealings with Ukraine helped trigger the first impeachment. Trump said at the time that Zaid "should be sued and maybe for treason."
Zaid has continued to represent whistleblowers during Trump's second term. His clearance was revoked after a March presidential memorandum directed agencies to cut off classified access for Zaid and 36 other individuals, with the president determining it was no longer in the national interest for them to hold such access. Federal agencies implemented the directive.
Zaid is now represented by Abbe Lowell, a veteran Washington attorney who has taken on a number of high-profile cases since Trump's return to office. Lowell's current client roster includes New York Attorney General Letitia James in her now-dismissed mortgage fraud criminal case and former Trump national security adviser John Bolton in a case involving alleged willful retention and unlawful transmission of national defense information.
This case matters well beyond Mark Zaid's legal practice. If a single district judge can override a presidential determination about who should access the nation's secrets, the entire architecture of classified information collapses into litigation. Every revocation becomes an invitation to shop for a sympathetic judge. Every clearance decision becomes a constitutional showdown.
Judge Ali's reasoning is worth examining closely. He found "retribution" without the article detailing what specific evidence supported that conclusion beyond the absence of an individualized assessment. But the president's authority over clearances has never required the procedural framework Ali imposed. Egan exists precisely because the judiciary recognized that national security judgments are not the kind of determinations courts are equipped to make.
The left has spent years arguing that norms and institutions must be respected. Interesting, then, that when a nearly 40-year-old Supreme Court precedent supports executive authority under a Republican president, a Biden-appointed judge finds creative constitutional workarounds. Due process and free speech are serious constitutional protections. They do not, however, create an affirmative right to handle classified material.
This appeal arrives alongside a broader DOJ effort to pause cases related to a law firm executive order, pending the outcome of the Zaid appeal. The administration is clearly treating this as a test case for the boundaries of judicial interference in executive branch security decisions.
Oral argument before the D.C. Circuit has not yet been scheduled. When it comes, the court will face a choice that extends far beyond one lawyer's clearance: whether the judiciary can substitute its judgment for the president's on matters the Supreme Court already said belong to the executive.
The Constitution answered that question in 1788. The Supreme Court confirmed it in 1988. The only question now is whether the D.C. Circuit remembers.
