White House officials continued to bail over failed security clearances this week. The latest: National Economic Council official George David Banks resigned on Tuesday after learning that he would not be given a permanent security clearance. The reason? “Banks said he was told that his clearance would not be granted because he admitted to smoking marijuana in 2013,” Politico reports.
George David Banks says he failed to get a security clearance because of past cannabis use. But that’s almost never a disqualifier.
It’s not clear whether Banks smoked cannabis in 2013 or whether his admission was made in 2013.
Banks became the third official in the past week to resign over security clearance issues. Last Wednesday, White House staff secretary Rob Porter stepped down after allegations of past domestic abuse surfaced. On Friday, speechwriter David Sorensen resigned over domestic abuse allegations as well.
The Trump administration has allowed many staff members to work under the cover of interim security clearances, even though most FBI background checks have already been completed. Those who have not received permanent security clearance include the president’s son-in-law and close advisor, Jared Kushner, which has made the issue of staff clearances an awkward one.
The New York Times reported on Monday:
People familiar with the security clearance process in Mr. Trump’s White House said it was widely acknowledged among senior aides that raising questions about unresolved vetting issues in a staff member’s background would implicitly reflect on Mr. Kushner’s status, as well — a situation made more awkward because Mr. Kushner is married to the president’s daughter Ivanka.
The FBI and federal intelligence agencies perform extensive background checks on White House staff members. Those agencies make the decision about who receives security clearances and who doesn’t—but they don’t have ultimately control over who’s hired, who’s fired, and who comes and goes in the White House. That’s up to the president, his chief of staff, and the White House Personnel Security Office. It’s unclear how long an interim security clearance can last, but it’s clear that there are certain rules that apply. Executive Order 12968, issued in 1995, requires that federal employees not access classified information unless they:
(1) have been determined to be eligible for access by agency heads or designated officials based upon a favorable adjudication of an appropriate investigation of the employee’s background;
(2) have a demonstrated need-to-know; and
(3) have signed an approved nondisclosure agreement.
Is Past Cannabis Use Really a Disqualifier?
Even the most stringent federal job applications, such as those for the FBI, allow a grace period for past cannabis use. The FBI specifically states that the Bureau’s job candidates “cannot have used marijuana within the three years preceding the date of their application.”
William Henderson, a veteran security expert and author of the book Security Clearance Manual, is the founder of the Federal Clearance Assistance Service (FEDCAS), a consulting firm that advises those going through the federal clearance process.
Q. If I used marijuana and experimented with other drugs over two year ago while in college, will I be denied a security clearance?
A. Probably not. Although the Adjudicative Guidelines list any drug use as a disqualifying condition; most young people are able to substantially mitigate their drug involvement. Mitigation involves a stated and demonstrated intent not to abuse any drugs in the future, dissociation from drug-using associates, changing or avoiding the environment where drugs were used, and an appropriate period of abstinence.
There have been cases where a period of less than one year was adjudicated as “an appropriate period of abstinence.” The appropriate period of time is influenced by your age, frequency of use, and the number of years that you used drugs. If you are middle aged and you used drugs regularly for 10 years, an adjudicator may not feel that two years is an appropriate period of abstinence.
Q. How much time must pass before illegal drug involvement can be mitigated by time?
A. The Adjudicative Guidelines do not contain any timetables regarding drug involvement; however, there is a supplemental guide known as the “Adjudicative Desk Reference” (ADR). Adjudicators can use the ADR to help them reach their decisions, but they are not required to follow the recommendations in the ADR. The ADR contains the following definitions and guidance regarding the minimum amount of time that should pass before drug involvement can be mitigated by “passage of time without recurrence”:
The following examples of time periods [of abstinence] that might mitigate various types and frequencies of past drug use . . . are provided for consideration in the context of all the other information available about the person. They are not a formula to be applied mechanically in all cases.
At Least Six Months: The only drug use was experimental or occasional use of marijuana, and there are no aggravating circumstances.
At Least One Year: Marijuana was used frequently, or any other drug was used experimentally, and there are no aggravating circumstances.
At Least Two Years: Marijuana was used regularly, or any other drug was used occasionally, and there are no aggravating circumstances. There was no evidence of psychological or physical dependence at the time subject was using drugs, and subject has demonstrated a stable life style with satisfactory employment record since then.
At Least Three Years: Any drug other than marijuana was used frequently or regularly, or marijuana was used regularly with signs of psychological dependence. There are no other aggravating circumstances. Subject has maintained a stable lifestyle, satisfactory employment record, and a completely clean record in all other issue areas during the past three years.
At Least Five Years: A minor involvement in drug trafficking for profit or failure to complete a drug treatment program. Subject has maintained a stable lifestyle, satisfactory employment record, and a completely clean record in all other issue areas during the past five years.
Regular or Habitual Use: More than once a week.
So Hitting a Joint Wouldn’t Prevent a Clearance?
Most likely not.
Using Henderson’s guidance above, George David Banks would have had to own up to a past minor involvement in cannabis trafficking, or failed to complete a required drug program. For a member of the National Economic Council, that’s highly unlikely. In fact, cannabis use as a disqualifying act hasn’t really come up with a White House official since 1987, when President Reagan’s Supreme Court nominee, Judge Douglas H. Ginsburg, withdrew his nomination after the disclosure that he had consumed cannabis in the past on several occasions.