Experts on the security clearance process used for White House staffers said the hiring of top aide Rob Porter raises serious questions of how it is being handled in the Trump Administration.
Porter resigned Wednesday after his two ex-wives detailed allegations of domestic violence to the Daily Mail, which also published a restraining order filed in 2010 and a photograph of the abuse. Both said they had notified the FBI about the abuse during his vetting for a security clearance.
At a White House press briefing Thursday, Deputy Press Secretary Raj Shah told reporters that Porter had been working under a temporary clearance and that a permanent one had been held up because of the allegations, although it had never been denied. (The FBI declined to comment to TIME.)
As staff secretary, Porter had one of the most important roles in the White House, filtering the information that reached Trump’s desk and serving as an enforcer for White House Chief of Staff John Kelly.
In that role, he would have needed a security clearance to see classified information that is passed to the president.
Applicants for a security clearance are required to to fill out an extensive form, the SF86. The form asks the applicant to disclose if there are any current restraining orders against them, and if they have been “a party to any public record civil court action not listed elsewhere on this form” in the past decade.The form states that “withholding, misrepresenting, or falsifying information may affect your eligibility for access to classified information, eligibility for a sensitive position, or your ability to obtain or retain Federal or contract employment.”
Laura Terrell, an attorney who worked in the White House Clearance Counsel during the George W. Bush Administration from 2004 to 2005, told TIME that if Porter was applying for a clearance he would have probably to disclose a 2010 protective order from his second wife, Jennifer Willoughby, in response to the question about public record civil court action, because in Virginia, a protective order is issued in a civil proceeding.
“It seems clear the form calls for that,” she wrote in an e-mail. Leaving this information off the form, she explained, would have been a “serious omission.”
If authorities were following protocol, Terrell said, that disclosure would have been sent to the White House Counsel’s office. Based on her experiences reviewing security clearance applications, she said it is highly likely that approval would have gone even higher up the chain, to the chief of staff — which would have been Reince Priebus or Kelly depending on when the information was received — for further consideration.
Shah declined to say what Kelly knew about the allegations, only stating that he became fully aware this week after he saw the photos of Porter’s first wife, Colbie Holderness, with a black eye.
But Terrell said that it was already unusual that even a temporary clearance would have been accepted.
“I don’t think it would have happened in the Bush White House. I think that that would have raised enough concerns that someone would not have been granted a provisional clearance,” she said. “I just don’t see that it would have been something accepted in the White House that I worked in.”
For his part, Shah concluded that the White House “could have done better” in handling the situation.
But, while this may be the first acknowledgement of mishandling a situation, this is not the first time the vetting of a key Administration member has caused a headache for the White House.
Trump’s son-in-law, Jared Kushner, garnered scrutiny for failing to disclose foreign contacts on his form, a list of omissions that included former Russian Ambassador Sergey Kislyak during the transition. Andy Puzder, who Trump had originally picked as his Secretary of Labor, withdrew his nomination after decades-old allegations of abuse from his ex-wife surfaced, although she later retracted them. And Trump’s former Chief Strategist Steve Bannon was charged with domestic violence in 1996, although the case was ultimately dismissed.
Shah declined to say how many other members of the Administration were operating with temporary security clearances. But Norm Eisen, a senior fellow at the Brookings Institution who served as White House Special Counsel for Ethics and Government Reform in the Obama Administration and has been a frequent Trump critic, said these issues with vetting reflect the Trump Administration’s decisions to play by its own rulebook.
“This White House and this Administration play fast and loose with the laws, rules and norms that have historically governed and been respected by previous White Houses of both parties,” Eisen told TIME. “The reason that somebody with these extraordinary allegations hanging over their head would be able to be in the position is the contempt that emanates for the normal rules, starting with the President.”