Follow politics for any measurable amount of time, and chances are good that you’ll witness an elected official embroiled in a sex scandal. Presidential Counselor Kellyanne Conway best summed up the phenomenon when asked shortly after the 2016 election how she planned to juggle her new job as a mother of young children:
“I don’t play golf and I don’t have a mistress”, she quipped.
Although it seems from the frequency of news stories that our elected officials have a lock on extra-marital dalliances, those folks are – at least in theory – a microcosm of the American population as a whole. Whatever they’re doing in their personal lives, so too are lots of other people.
Certainly, within the realm of the federal bureaucracy there are plenty of, shall we say, “frustrated feds” illicitly heating things up in hotels, in government office buildings after-hours, and sometimes even in public places. I’ve encountered all of these scenarios in my law practice, and the conversations can be initially embarrassing and uncomfortable for the client. Accordingly, I always tell my clients: (a) I’m not judging you; (b) whatever you’re about to tell me, I’ve probably heard dozens of times before; and (c) whatever you did, you can almost guarantee that someone else has done far worse.
That being said, having an extramarital affair can be a security clearance (and career) killer, depending upon the circumstances.
Difficult cases to win include those where the clearance-holder’s paramour is a foreign national (especially, an employee of a foreign government), where the clearance-holder has lied about the affair to the government or failed to accurately report the true nature of the foreign contact (e.g. “friend” versus “mistress”), or where the clearance-holder’s spouse remains unaware of the affair, thereby creating blackmail potential. In cases involving a false statement, the clearance holder may have far more with which to be concerned; just last year, a clearance holder in Florida was federally prosecuted for lying about an affair with a foreign national on his SF-86.
Easier, more mundane cases include those where the extra-marital affair occurred while the clearance holder was still married but legally separated, married but “living apart”, or where the affair has ended and the clearance holder has confessed to his or her spouse. In some situations, I’ve had to have the rather uncomfortable “how far did you go” conversation with clients, as extra-marital transgressions that fall short of sexual intercourse may lack the same potency for blackmail potential, thereby rendering them less of an issue in the eyes of security officials.
Ultimately, any extra-marital affair can be problematic if security officials consider it to evidence a lack of discretion, judgment, or integrity – and those are all fairly subjective means of evaluation. If you’re contemplating extra-marital activities, you should be as equally cognizant of the potential career damage as you are the other risks. But if you’ve already done the deed, it may not necessarily be a deal-breaker with a good legal defense.
This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation.
