President-elect Donald Trump doesn’t seem to tire of setting new precedents. Despite being provided with a newly bolstered Secret Service detail after the election, the president-elect has retained his own private security and intelligence force, breaking with tradition and creating operational and potentially legal problems.
Last month, Trump spokesman Jason Miller responded to a Politico article citing supposed fault lines between Secret Service agents and members of Trump’s private security team, calling it “wildly out of proportion.” Yet Miller confirmed that Trump will continue to be surrounded by “longtime allies and advisers.” Among those is Keith Schiller, a former New York police detective who has worked as Trump’s bodyguard for 17 years and recently as his head of security during the campaign.
For now, Schiller, who was appointed Director of Oval Office Operations earlier this month, is the only security team member to gain a spot in the White House. But questions remain on what form, if any, the rest of Trump’s private security and intelligence force will take post-inauguration.
According to Secret Service Director Joseph Clancy, the private force is currently operating in parallel to the Secret Service. “They’re not in any of our meetings ... they’re not armed. They’re more of a staff function than a security function,” Clancy told CNN earlier this month in his first interview since Trump’s election.
Clancy also denied rumors of conflict between Secret Service agents and Trump’s private security. “There is no friction at all,” Clancy said, adding that the Secret Service maintained the sole responsibility of protecting the president and that, in the case of a threat, private security would not interfere.
Although Clancy described them as working in more of a staff function, these are still private security contractors. Trump’s campaign continued to pay security service provider XMark LLC after Election Day and its officials were seen policing the crowds at post-election Trump rallies, according to Politico.
The retention of a private force, in any form, raises several operational and legal issues. A private security and intelligence force would not have to abide by the constraints and obligations of the Secret Service. There would be no transparency in how they were vetted, and there would be no committee overseeing them. If both Secret Service personnel and private bodyguards found themselves protecting the president at events outside the White House, it’s not clear how would they coordinate.
According to my sources, no previous president or president-elect has ever had private security. The last time a president tried to have a private, parallel intelligence staff was the case of Nixon’s plumbers. That did not end well. It was a major element in Nixon’s impeachment.
“The idea of Trump keeping his own private security force in some form, while being President, is both unprecedented and a bad idea,” says Peter Singer of the New America Foundation. Singer, who’s written extensively on privatization of national security functions, thinks a private force could be potentially used to bypass institutional and legal constraints. “These roles are best performed by law enforcement professionals responsible to the public and under public oversight.”
Trump’s private security and intelligence forces have been aggressive at sniffing out protesters at rallies and manhandling them in ways that the Secret Service simply does not do. In the CNN interview, Clancy made clear that that if a protester is removed, that’s a decision made by Trump’s security, not the Secret Service, who will only intervene when there is a direct physical threat to the president.
Trump’s security has a long record of forcefully ejecting protesters, sometimes responding to cues from Trump himself. With Schiller at its head, the private security force and the Trump campaign face three pending lawsuits for inciting violence and failing to provide adequate security. This is on top of allegations of undue force and racial profiling by protesters
Trump himself has not commented on his post-inaugural plans for his security force. A spokesman for Trump’s office did not respond to the Prospect’s request for comment. The president-elect does seem to plan on continuing to host rallies. “This is the last time I’ll be speaking at a rally for maybe a while,” he said during the final stop on his victory tour. “You know, they’re saying as president he shouldn’t be doing rallies, but I think we should, right?”
The vast majority of Trump’s private employees are bound by confidentiality agreements. In an interview with The Washington Post last year, Trump made clear that if he won the White House, he would want to require his new team of federal employees to all sign NDAs. One such agreement, obtained by AP, revealed just how much of a premium Trump puts on confidentiality, prohibiting employees from revealing anything considered confidential by Trump throughout their employment and any time thereafter.
That won’t fly when it comes to the Secret Service. The Service has its own confidentiality agreements, but they are not as absolute. According to an article by The Christian Science Monitor, Secret Service agents are not legally bound to stay silent once they leave government service. Secret Service agents, moreover, are also required by law to report any illegalities they witness. Trump’s private security members are not.
The problem of a private security and intelligence force does not end with potential operational interference. It could also be illegal. If President Trump pays for his own private security force after being inaugurated, he would be in violation of a provision of the Antideficiency Act, according to UCLA Law Professor Jon Michaels. “If Trump is paying for them [private security] out of his own pocket, or via third-party, and Congress hasn’t explicitly approved of it, it’s outside of appropriations and illegal,” says Michaels.
The Antideficiency Act prohibits federal employees from “accepting voluntary services for the United States, or employing personal services not authorized by law, except in cases of emergency involving the safety of human life or the protection of property."
“The only question would be whether they [private security force] are providing a service for the United States or whether he [Trump] can claim they are just a personal service,” explains Georgetown Law Professor David Super. A personal service would be something like the president hiring a bartender or getting a haircut—not exactly on the national agenda. The protection of the president, however, is a different story. “The safety of the president is a national priority and has been accepted as a function of the United States government,” Super says.
The statute goes on to say that ongoing government activities cannot be considered emergencies. What’s more, to claim that there was an emergency requiring private security would first require proof that the Secret Service is not up to the task.
According to Super, even if private security is only throwing protesters out, that’s still duplicating the function of the Secret Service, and as such, would need to be approved by Congress. “Protesters aren’t protesting Trump on just a personal level, they’re protesting him in his role as president. Just because private security is throwing out people that the Secret Service allowed to stay doesn’t mean that they’re not duplicating the function of the Secret Service,” Super says. “The only difference is their discretion in danger assessment.”
A potential violation of the Antideficiency Act might get lost in the tempest of recent Trump scandals, but it’s worth keeping an eye on. Jon Michaels, the UCLA law professor, worries that this could become bigger than just a private security force. Establishing such a precedent would weaken constraints placed on the executive branch and effectively allow Trump to engage in “checkbook governing”, free to fund any pet cause without congressional approval. “Absent this restriction,” Michaels writes, “the president could hire a phalanx of support staff to do more—or different—work than what Congress authorized, thereby creating fiefdoms of unchecked, unrivaled bureaucratic power.”
As with other potential Trump violations of law, there are no immediate remedies. Trump might try to have Congress change the law, to permit him to lawfully hire private employees, but that seems unlikely. The Constitution provides only one sure route for dealing with presidential illegality—impeachment.
There are two likely outcomes. Trump’s private bodyguards reporting to Schiller could remain disarmed and become part of the paid White House staff. Alternatively, Trump may insist on keeping a paid private security force for outside events; and, as Clancy has broadly hinted, the Secret Service will try to accommodate Trump to avoid a showdown between the legal presidential bodyguards of the Service and Trump’s private force. If this is the path Trump chooses, the illegality will become one more count in the Trump dossier.