Whistleblower lawyer Mark Zaid on the Trump administration's move to revoke security clearances

For decades attorney Mark Zaid has represented a huge array of government whistleblowers, both Republican and Democrat. But his role in the case of a whistleblower at the center of the first Trump impeachment has put him in the crosshairs. 

Earlier this month, The New York Post reported that President Donald Trump had allegedly revoked Zaid’s security clearances. He talked to the Click Here podcast about being a target of the new president’s campaign of retribution.

The interview has been edited for clarity.

Click Here: You’re a bit of a fixture in the intelligence community and you’ve helped all kinds of whistleblowers… How did all that start?

Mark Zaid: When I came down to Washington, D.C. in 1993, I was searching for a job inside the U.S. government. I wanted to be in the Department of Justice or the State Department and handle international law issues — war crimes, terrorism, human rights work. But I couldn’t find a job, so I started my own law practice. And from the get go, I connected to a lawyer named Alan Gerson, who I knew from when I was in law school. 

I had already worked with families of the victims of Pan Am Flight 103, the Lockerbie bombing in 1988, because I knew people who were on the flight, two people, two students who were a year behind me at school. So I had a lot of connections from the New York City area, because that's where most of the victims were from. Alan asked me to be part of his legal team, which was at the time him and me, to sue the government of Libya for the bombing of Pan Am 103, and of course I jumped at the opportunity. 

And while I was doing that, I did a lot of research on the Kennedy assassination and I got to know a lot of authors who wrote books, conspiracy and non conspiracy, and I started representing them in federal court in FOIA [Freedom of Information Act] lawsuits. That’s when I started to meet people who worked inside the intelligence community, particularly because I was suing them. And that led individuals inside the agencies to hire me, including whistleblowers. And the rest is kind of history. 

CH: So when people call you the go-to lawyer for the intelligence community, they aren’t exaggerating.

MZ: For certain things, especially intel-wise, because there's just not that many lawyers who do it. I specialize in Freedom of Information Act litigation. I'm well known for that, for security clearance work, for pre publication review, suing the government to ensure there's no classified information in the manuscript.

I've litigated more cases than anyone combined for First Amendment disputes against the U.S. government, including two former secretaries of defense, a national security advisor and a lot of other people who just had great stories to tell about the work they did for the U.S. government. 

CH: Did you do the work on John Bolton's book?

MZ: No, because that's why John Bolton got sued by the administration and accused of revealing classified information, because I don't do that.

CH: And you had a few Trump cases as well, right? 

MZ: When Trump first went into office, we sued him in March of 2017 over his hotel in the Old Post Office Building, we alleged that that was illegal. We lost, but that was a case we litigated for a while. And I represented a number of whistleblowers during the Trump administration. I mean, frankly, the work I did during the Trump administration was like the work I do in every other administration. There was no difference doing lots of security clearance work, a lot of personnel, disciplinary actions, investigations, congressional investigations.

CH: But you handled the whistleblower case that led to Trump’s first impeachment. 

MZ: I handled, with a colleague, the intelligence community whistleblower whose complaint became public. It was filed in August 2019 and it became public in September 2019. I was not the initial lawyer. I was brought in by my colleague five weeks later just as the complaint was becoming public, and that complaint of course led, not through our doing, but it led to Trump's first impeachment by the House of Representatives.

CH: This is the ‘Hey, do me a favor’ call that President Trump had with Ukrainian President Volodymyr Zelensky, saying he’d provide anti-tank missiles to Ukraine to fight the Russians if the Ukrainians could provide some dirt on Joe Biden.

MZ: Right. The perfect call with President Zelensky of Ukraine. [Editor’s Note, that is the way President Trump described the call when it came to light.]

CH: I know this is an obvious question, but I'm going to ask it anyway. Could you explain why security clearances are so important to your work? 

MZ: I'll say first, it's not going to significantly impact my financial well-being in the sense of I can no longer practice law as if I lost my law license or something to that effect. But I am one of the few lawyers to have a security clearance because many of my clients work within the cleared or classified environment. 

Let me give you an example as to why that’s important. Say I have a client who is a covert case officer for the CIA, an American spy. Their affiliation with the CIA is a secret. It is criminal for someone to reveal it or for them to tell someone without authorization. And if they get in trouble at work, whether it's something just normal and routine, or something that might be significant and public, they need legal representation.

And I would be one of the few lawyers who would have the security clearance necessary to be able to know that they work at the CIA and possibly see the classified information that underlies their case that I would review at whatever agency might be involved. 

CH: This lets you get into the SCIF (sensitive compartmented information facility)? 

MZ: Right. Or, you know, sometimes the client is being investigated by the U.S. government, whether in the military, law enforcement, diplomatic, or intelligence communities, and the information at issue is classified. And in order for them to have, as they're entitled to, legal representation, the lawyer has to have a clearance.

So I would participate in those. I did not have classified access to anything in the intelligence community for the Ukrainian whistleblower case because the complaint was declassified and I didn't need it, but I did have access the next year for a Department of Homeland Security whistleblower case. It was the highest ranking whistleblower likely in history, certainly in modern times, he was an acting undersecretary for intelligence at DHS. And this was a very public case.

And this goes to the whole notion of do I have a clearance or not? Because the Intelligence community whistleblower case was in 2019. A year later was the DHS whistleblower case, both obviously during the Trump administration and the Trump administration increased my security clearance and access up to the highest levels because there were congressional investigations and classified whistleblower complaints and interviews with the inspector general's office in DHS… The government authorized me to have a need-to-know and authorized access, but apparently now I'm untrustworthy because of something that happened the year before. 

CH: Tell me about finding out about your clearances allegedly being pulled… and sort of finding yourself on an enemies list. 

MZ: So it depends on which enemies lists we're talking about because several people have created different lists over the course of the last few years and I don't know how many lists I'm on. I know I'm on some of them. I can see them online every once in a while, as I am accused of being a treasonous traitor… But for purposes of my security clearance, I was at a wedding of a colleague when text messages and actually reporters had started calling, but I wasn't paying attention because I was at the wedding. 

Then I got a text message from a colleague that said something to the effect of, “I’m so sorry to hear what happened.” And I was like, what are you talking about? What happened? And he's like, you're in The New York Post — Trump took your clearance away. I'm like, Oh, okay. 

CH: And what was your first thought when you heard that? 

MZ: I smirked and showed my fiancé, ‘Hey, look what just happened!’ and wrote a nice public statement while still at the wedding reception… I styled it as, you know, this is my red badge of courage for those who are fans of the Stephen Crane novel from 1895, and ended it with, what took you so long?

CH: Can you talk a little bit more generally about this growing list of people that the president has deemed disloyal?

MZ: Right. So even though we were told the weaponization of the justice system and intelligence community shall not happen again because of how bad it was to Donald Trump and his allies — we've seen exactly the opposite. In fact, what we have seen is the mobilization of it to an extent we have never seen before, probably for the most part in many of our lifetimes.

Though clearly there were nuances in the Nixon administration, as well as the Eisenhower administration during particularly J. Edgar Hoover’s tenure and the Red Scare and civil rights and things like that. But what we're seeing today is purely political enemies. The Trump administration in particular is really going out of their way to target anyone who it perceives to be an enemy and at times capturing people who frankly had nothing to do with things they accuse them of… I mean, kind of think they're catching dolphins in the tuna net. 

CH: Do you know for certain that your clearance is gone or is the most you know what was reported in The New York Post.

MZ: The most I know is what was said in the New York Post. I have received no official notification from the U.S. government with respect to my security clearance, which is not surprising.

CH: Is that normal or do you just find out when you ask to see something classified? 

MZ: So I don't even know how I can answer that question. I suspect that I will find out. The next time I need to have authorized access to classified information and either a client requests me to have access or where it really impacts me the most is in representing victims of anomalous health incidents (AHIs) — what the media calls Havana syndrome, but I don't like the term. 

I was bringing whistleblowers [connected to that case] from within the intelligence and law enforcement communities to the Hill, to Congress, to the intelligence committees, to meet predominantly with Republican staff, to demonstrate that the Biden administration was covering up what AHIs were. When they occurred, to whom they occurred, and who was causing them, and that will now be interfered with if in fact my clearance has been revoked, which you would think the Trump administration would not want because I was trying to claim the Biden administration was covering up all the evidence. 

CH: And you have no political affiliation, correct? Not registered for any particular political party?

MZ: I have gone out of my way constantly for 33 years not to be partisan. And unfortunately the right and left wings, but particularly the right wing, doesn't really understand what that terminology means — that like, you don't have to like Donald Trump. And that doesn't mean you're being partisan. I have nothing against Republicans at all. In fact, the only job offers I've ever had in the government have been from Republicans. 

CH: If your clearances have indeed been pulled, do you have any recourse?

MZ: In a normal world, we are supposed to have procedural, if not substantive, due process protections. You're not supposed to just be able to revoke or deny someone's clearance without their opportunity to defend it. In fact, there's an executive order that's still in existence today. by President Clinton from 1995 that mandates that every agency that has a security clearance process has that type of process in place.

That said, the Supreme Court ruled back in 1988 that substantive security clearance decisions are non-reviewable by a federal court, but you can challenge the procedure. So theoretically I can go and challenge the fact that I was denied due process, although there is a line of thinking that due process doesn't exist if the president so declares it, but that is untested because I've never heard of a president of the United States revoking anybody's security clearance in the century that we've had the modern security clearance system. 

What would be more interesting would be a legal claim that it is interfering with my economic livelihood rather than getting into the substance of the, “am I trustworthy or not,” even though it's an inconsistent determination. I haven't gotten there yet. 

CH: So are you hatching a response? 

MZ: I am always hatching plans. The courts are usually very, very deferential to the executive branch. So those are difficult cases to make. I am not concerned. I'll say this, that at some point in time whether it's in a subsequent Democrat administration or a subsequent Republican administration, I will once again have my security clearance. I think this is a Trump issue, not a Mark Zaid issue.