Chuck McCullough, Partner with the firm, discusses the security clearance process and applicant’s prior history with drug use. To read the full article, click here or scroll down:

Why Sharing Adderall in College Could Cost You a Government Job


By David Brown / Jun 18, 2019

Prescription drug problems are the number one thing flagging candidates during polygraph examinations these days—and not for reasons you might think. Trading prescription medications—think: sharing Adderall in college, or offering a pain pill when a friend pulls her back—can disqualify you from getting a security clearance because agencies consider that “intent to distribute illegal narcotics.” Unlike, say, experimenting with cocaine that one time several years ago—something adjudicators might still rule favorably on—handing out your Adderall is an issue, and it is snagging a lot of job candidates.

“The SF-86 covers it, but it seems like these things always come up in polygraphs,” says Charles McCullough, a partner with the Compass Rose Legal Group, and the former Inspector General of the Intelligence Community. “It pops up with onboard people during their five-year re-investigations, and it pops up with new applicants as well. If your spouse has a painkiller prescription for a dental issue, and you can’t sleep and decide to take some, that’s a problem from a clearance standpoint.”

McCullough adds that for a one-off situation like that, an onboard worker can expect disciplinary action, but his or her clearance probably won’t be revoked. A clearance applicant who has done drugs within the last twelve months, however, or who has a felony drug conviction, will almost certainly be disqualified.

HONESTY ON THE FORM

“Minimizing” answers on the SF-86, or being somehow less than truthful, is the worst thing you can do when filling out the form. It’s never a bad idea to speak with an attorney before submitting the application to find out when and how answers should be best explained. Elisions of one’s personal history can come back to haunt an applicant when he or she is strapped to a polygraph machine.

“The polygraph, whether or not it’s good science, is basically an investigative and interviewing tool and it’s very effective,” says McCullough. Examinations are high pressure situations, and when people are hooked up to a polygraph, they tend quickly to become very, very honest about themselves. “The polygraph examiner is going to sit there with a yellow pad and pen and write everything down. The whole thing is being recorded. It’s being videotaped. It’s being audiotaped. And they’re going to say, ‘The needle isn’t bouncing your way. What’s wrong? What is it you are not telling me?’ And people tend to start disclosing everything over and over and over again, and if they haven’t already disclosed it on the form—if they minimized it on the SF-86 when they first applied—now we have an integrity issue. We’ve gone from just having a drug issue to having a personal conduct issue as well.”

And that could be disqualifying. Another ghost that tends to haunt people is the SF-86 that they completed many years earlier. When you are young, you think: Well, I only need a secret clearance and I don’t have to take a polygraph… so why complicate things with messy admissions like sharing a few pills? A decade later, however, an older, wiser cleared worker with three kids and a mortgage is offered a big promotion or a job at a defense contractor… and suddenly they need a Top Secret/SCI clearance with a poly. That SF-86 that was filled out ten years ago is still around, and suddenly those minimizations years earlier are back in a big way.

“When people fill out the SF-86, they really need to make sure they get it all down,” says McCullough. Adjudicators aren’t robots; they understand that life can be a little messy, and they use what is called a “whole person assessment” when deciding whether someone is eligible for a security clearance. “Obviously someone who is trafficking in heroin is going to be disqualified. But that’s not necessarily so for people who, say, experimented with drugs in college. Adjudicators are going to ask: What was the level of experimentation? Was it truly experimentation? Was there a habit? Was there addiction involved? Did they sell it? If they bought it, where did they get it from? Did they resell it to classmates? There are all sorts of permutations that have to be looked at, and it is looked at on a case-by-case basis. There is a contemplative process that takes place.”

TRICKY LAWS ARE NO EXCUSE

Drug laws and prosecutions in general are complicated affairs, which makes your SF-86 and subsequent polygraph even more of a minefield. Steal a car from the BMW dealership, and you are probably going to be arrested for stealing a car. Prescription drug crimes have a lot more nuance.

“In the federal system, it depends entirely on the specific facts of the situation, and how it’s charged,” says Jessica Carmichael, a federal criminal defense lawyer with Ayotte, Carmichael, Ellis, & Brock, a law firm in Virginia. “Giving prescription medication to your friend could create a number of criminal liabilities, ranging from misdemeanor to felony charges.”

And the fact that you didn’t end up in a courtroom is no excuse to conveniently forget to mention your drug arrest on the clearance application. “If you are arrested and charged,” says Carmichael, “and that charge is dismissed by the prosecutor—in other words, he or she elected not to proceed with the prosecution—typically that charge is still going to show up on your record.”

In any event, Carmichael says, almost any defense attorney will tell you to never make statements without a lawyer present. “Always be polite and respectful and at the first possible opportunity, ask to speak with an attorney.”

On March 1, 2019, Managing Partner Andrew P. Bakaj was interviewed by National Public Radio (NPR), Yahoo! News, and Think Progress concerning President Trump’s authority in issuing Jared Kushner a security clearance.

To read the NPR article, click here.

To read the YAHOO! News article, click here.

To read the Think Progress article, click here.

Chuck McCullough, Partner with CRLG, gives an interview about his time as the Intelligence Community Inspector General at the center of the Hillary Clinton e-mail investigation, career as an FBI Agent investigating Oklahoma City, and his role in reviewing the Boston Marathon bombing.

To listen to the interview, click here.

 

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