The 5th Amendment and Your Security Clearance
Let’s say hypothetically that you stole some items from a store and managed to escape the premises undetected. (Which, to be clear, I am not advocating) Weeks go by without police contact, meaning it is a fairly safe bet that your identity has not been discovered.
Now fast-forward a year. You never did get caught, but you suddenly decide to write a letter to the police detailing the crime. You provide them with your date of birth, your social security number, your home address, and sign the letter under penalty of perjury. You drop the letter in the mail and wait for the inevitable knock at the door.
Guilty conscience or spiritual awakening aside, this scenario likely seems far-fetched. Very few people would voluntarily admit to a crime, much less do so without the context of a plea bargain in criminal court. But to be clear, that is exactly what some security clearance applicants do on their SF-86.
The general wisdom seems to be that federal security clearance adjudicators read reports of investigation in a vacuum. I’ve actually heard someone say, “What happens in OPM-land stays in OPM-land.” Setting aside the horribly cheesy Las Vegas analogy, the absurdity of such a comment truly amazes me. On one hand, there is some surprising truth to it: federal policy has generally been that admissions of unreported criminal conduct made by an applicant in the course of their background investigation will not be reported for prosecution. On the other hand, there is a major difference between “can’t” and “won’t.” I, for one, would never advise my clients to rely on the latter.
THE LAW AND YOUR SECURITY CLEARANCE
The fact of the matter is that there really is no legal impediment to using an applicant’s admissions of unreported criminal conduct against the applicant in a subsequent criminal prosecution. The Federal Rules of Evidence and every state evidence code of which I’m aware has provisions specifically for using a defendant’s prior admissions against him. Such admissions are generally considered exclusions to the prohibition against hearsay evidence in court; it is effectively as though the applicant made the incriminating admission directly on the witness stand. And, while it’s highly unlikely that the FBI is trolling SF-86’s for undiscovered petty theft or marijuana use, admitting to more major unreported crimes – whether on the SF-86 or to your background investigator – might very well result in a RAP sheet should the winds of bureaucratic policy shift.
The issue is surprisingly prevalent. As a former OPM investigator, I had security clearance applicants admit to me all manner of unreported felonies: domestic violence, insurance fraud, computer hacking, and immigration fraud. And those are just the ones I remember. To this day I am still unsure whether some of my subjects even realized that they were admitting to a crime. Either way, the admissions ran the gamut from bizarre (the guy who regularly spanked his wife for “misbehaving”) to alarming (the guy who effectively admitted to keeping a domestic slave).
Question – is the job more important than your 5th amendment rights?
My intent in writing this article is not to encourage applicants to hide information from their background investigator or to perjure themselves. To the contrary: dishonesty is one of the top disqualifiers for security clearance applicants, and for good reason. (It is also a crime itself during the security clearance process). My intent is simply to highlight the choice that all applicants with prior undiscovered criminal conduct must seriously consider: whether the job they are seeking is more important than the preservation of the Fifth Amendment right against self-incrimination. Once an admission of guilt is made, it is very hard to recant the confession.
Candidates who have concerns about this issue are strongly advised to consult a qualified security clearance attorney before submitting their SF-86. You might not get the job, but you just might get to keep your freedom.
This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation.
