As you may have learned during your security clearance indoctrination, maintaining a security clearance is a privilege, not a right. If questions arise as to your fitness to hold a clearance, you aren’t legally required to answer them; but, if you don’t, the government doesn’t have to grant or continue the clearance.
This legal landscape stands in stark contrast to a criminal case, where the interest at issue – liberty – is a constitutional right that cannot be deprived without minimum due process. Notably, the Fifth Amendment of the U.S. Constitution also applies in criminal cases. This affords the accused the right not to answer questions or otherwise speak about the allegations against him or her without creating any inference of guilt.
So what happens when the two worlds collide? Here is what you need to know if you find yourself facing criminal charges as a security clearance holder.
Establish Your Order of Priorities Before Doing Anything Else
It is certainly understandable that you might be worried about losing your clearance and your career over the criminal charges. But in the grand scheme of life, maintaining your freedom and avoiding other, more serious ramifications like becoming a convicted felon, being required to register as a sex offender, etc. are far more consequential. If your actions to salvage the clearance/career (see below for further) risk jeopardizing the outcome of a criminal case, its probably not worth the trade-off unless the criminal charges are so minor as to not warrant concern.
Don’t Be Penny-wise but Pound Foolish
With your freedom, career, and livelihood on the line, don’t even think about defending yourself in a criminal case. Only a fool has himself for a client – which means that even lawyers hire lawyers when they find themselves in trouble. And, while there are plenty of excellent public defenders out there and plenty of awful attorneys in private practice, the general wisdom is that hiring an experienced, private defense attorney is the most important decision you can make when facing criminal charges. The same thing goes for your security clearance. There is a reason why attorneys specialize.
Carefully Self-Report the Arrest or Charges to Security Officials, As Required
Security Executive Agent Directive (SEAD)-3 requires all security clearance holders to immediately self-report an arrest or criminal charges to their agency security officials or Facility Security Officer. In many cases, self-reporting of potential security concerns can be an opportunity to proactively provide mitigating information that heads-off clearance suspension or revocation proceedings at the pass. This, however, is not one of those situations. Instead of reporting your version of events or raising potentially mitigating factors in your self-report, simply report the publicly-available and indisputable facts of what transpired (e.g. “I was arrested yesterday, July 15, 2018, by the Baltimore Police Department for allegedly purchasing marijuana from an undercover police officer. I have hired a criminal defense attorney and pleaded ‘not guilty’ to the charges. I will provide additional updates on the case as they become available.”)
Reporting only the indisputable fact that you were arrested avoids creating a situation where you may later be deemed in criminal court to have waived your 5th Amendment right to silence, which can be detrimental to your defense.
Bureaucratic Backlogs and Delays are Your Friend in This Situation
Because you may ultimately be required to provide the government more information about what transpired to result in your arrest, the fact that the security clearance process moves at glacial speed is a good thing in this context.
Ideally, your criminal case will be resolved prior to the time you finally have to share your version of events with personnel security officials. If it isn’t resolved – or if there is still a risk of prosecution for other, related charges – you may need to bite the bullet and go seek uncleared employment. Remember that you created that order of priorities list for a reason.
This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation.
