One of the questions I get most frequently asked is whether “a misdemeanor” or “a felony” will adversely impact someone’s ability to obtain or retain a security clearance.  The short answer is that there is no short answer.  It depends on a variety of circumstances, including the subject’s age at the time, the amount of time that has elapsed since the incident, and whether the incident was a one-off mistake or appears to evidence a pattern.  Most importantly, it depends on the nature of the charge(s) – and the facts giving rise to arrest.

Not all Criminal Charges are Created Equal

The idea that all misdemeanors and all felonies can somehow be lumped together as equivalent groups is a fallacy.  There may be a distinction of severity under criminal law, but that distinction has lesser relevancy within the security clearance context where reliability, integrity, and judgment are the primary considerations.

OFfenses That Are Particularly Concerning For Clearance HOlders

In the security clearance arena, there are a few categories of offenses that give cause for particular concern, regardless of whether they’re classified under criminal law as felonies or misdemeanors.  Those include:

  • Crimes of Moral Turpitude – generally those crimes which involve dishonesty (e.g. theft, embezzlement, burglary) or those which involve conduct that is so “base, vile, or depraved that it is shocking to a reasonable person” (e.g. many sex offenses, including those perpetrated against minors).
  • Crimes Involving Alcohol or Illegal Drugs – absent evidence of substantial rehabilitation, the concern here is that the individual continues to use illegal drugs, abuse prescription drugs, or consume alcohol to excess, thereby impairing his or her judgment, reliability, and ability to safeguard classified information.
  • Crimes Involving Violence – in this post-Fort Hood / post-Navy Yard shooting environment, personnel security officials are particularly sensitive to any evidence of a propensity toward violence, whether stand-alone or coupled with a mental health history. Anger management classes, counseling, and/or mental health treatment can be critical for mitigation in such situations.
  • Crimes Involving Firearms or Explosives – an especially concerning sub-set of crimes involving violence are those which involved the use of firearms or explosives. The same mitigating criteria apply, but applicants may find that the passage of significant additional time is required before regaining the government’s trust, if at all.  A rare and interesting exception may be cases involving “imperfect” self-defense (self-defense deemed excessive by the courts).
  • Crimes Involving Special Circumstances – any crime involving the mishandling of classified information or willful evasion of security rules may prove an insurmountable obstacle to obtaining or retaining a security clearance. Nonetheless, there are no specific crimes identified under federal law or policy that per se preclude an individual from holding a security clearanceIt is conceivable that under unusual circumstances – including probably the passage of substantial time – an individual with such a history may become re-eligible for a security clearance.

It’s a Case By Case Basis

The bottom line is that not all criminal charges are created equally, even though criminal law may lump them into equivalent-sounding groups like “felony” or “misdemeanor”.  There could be circumstances under which a felony – say, selling marijuana in a state where it remains illegal – is actually of lesser concern to security officials than a misdemeanor for theft or domestic violence.  Each case has to be assessed on its own merits and security clearance applicants shouldn’t rule out a favorable eligibility determination based solely on a prior criminal history – even one involving a felony arrest or conviction.

 

This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation. 

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Security Clearance Attorney Sean M. Bigley represents clients worldwide in security clearance denials and revocations. He is a former investigator for the U.S. Office of Personnel Management. For more information, please visit www.bigleylaw.com