The Alcohol Made Me Do It

This is something that I think we see all the time, both of us, where somebody got themselves into some sort of trouble, they used drugs or they got into some domestic violence situation, or you name it, and the excuse or the defense is, “Well, I was drinking at the time.” The question is, “Well, does that mitigate or does that actually make things worse?? What’s your sense? I mean, I’m sure you see this come up often, but what’s the general context that you most frequently encounter this issue on clearance jobs?

Oh, yeah. I mean, those DOHA cases that they publish are the gift that keeps on giving, because you see the folks, how they try to write or justify themselves out of a situation, and we find that oftentimes whether it’s domestic assault, even a workplace incident, and they blame alcohol for it. I think the blame game is just generally not usually a winning legal strategy. I’ll be curious to get your take later, but just because it shows a lack of personal responsibility. The security clearance process is different than a legal court of law, and they really are looking at your personal reliability and trustworthiness. Whether you blame your spouse for something, or a coworker, or your alcohol issues, I think that actually reflects more poorly on the individual unless then they took proactive steps and got alcohol and substance abuse treatment for that, and then can show a real change in behavior.

I unfortunately see the other side of it where it seems like folks will just say like, “Oh yeah, I was drinking at the time I did X, Y, Z, and that’s why.” Unless it’s tied to really getting help and accepting personal responsibility and not blaming the alcohol saying, “I was just making poor life choices at that time, and this is why I did this,” because otherwise, yeah, the alcohol is just symptom of a general issue of lack of reliability and trustworthiness at that point. In my experience, I think it reflects negatively and does not seem to actually help the applicant with their clearance chances. Is that what you’ve seen?

Yeah. I think you hit on the key caveat to all of this, which is that unless you went out and got help or took ownership of it… These are very case specific issues for us in our practice. There are times where somebody has done something dumb and they were drunk and we look at it and say, “Okay, well, the alcohol may actually mitigate it if we can show, for example, that you weren’t normally a heavy drinker, but for whatever reason in this particular instance, you drank a little bit more than you anticipated or realized and then you did something dumb and it’s never going to happen again.” We’ve seen that fact pattern come up. Sometimes we can get evidence in the form of character testimony and things like that, “No, this person is not a heavy drinker. They’re a total lightweight or teetotaler or whatever, and on this one occasion, they over imbibed and they just weren’t able to handle their alcohol.” That can be mitigating.

We also see cases where somebody has done something really egregious and it’s a wake up call and they finally realize like, “Hey, I’ve got a problem. I need to get some help. I need to go to rehab or counseling or get into AA or all of the above.” If they do that and they really take ownership and there’s been enough of a passage of time to show that they’re making good progress, so I would say a minimum of six months, ideally a year or more, then that can be mitigating and we can say, “Look, whatever this person did, it’s not because of malice, it’s not because of negligence, it was because of their drinking. It was a symptom of their alcoholism,” for example. Based on that, and based on all of these things that we can prove that they’ve done to get help, now they’re no longer a security risk.

What I always tell people just to keep in mind in these cases is the security clearance process is not supposed to be punitive. It’s supposed to be predictive. What that means is just because you made a mistake previously doesn’t necessarily mean that your clearance is going to be denied or revoked because of it, if you can show that it’s not going to happen again. If, on the other hand, you haven’t done anything and you’ve sat on your hands and said, “Well, I don’t need help,” or, “I’m just going to phone it in and make a half-hearted attempt to get help,” that’s not really going to cut it. Then when we come back to this predictive assessment, well, then it starts to look like maybe there is a chance of it happening again.

To get back to your original point, the caveat there from our perspective, at least as defense attorneys, is there are situations where the alcohol use can be a mitigating factor if the person has really taken ownership and demonstrated that that issue has been resolved. The flip side is, and I think this is what you were alluding to, most of the time it’s actually not that. It’s not that the person has gotten treatment, it’s that they were just a drunk idiot and they’re still a drunk idiot. That’s a different scenario, and I would imagine those are the more frequent cases that you’re seeing, Lindy, right?

Patterns of behavior are what’s significant. We do know that with COVID that alcohol consumption at least, or our purchase of alcohol went up significantly. I’m all about following the market trends.