Various factors go into assessing an individual’s suitability for a security clearance. However, U.S. national security officials may deny or revoke a service member’s, federal employee’s, or contractor’s security clearance for various reasons, including when a clearance holder or applicant faces civilian criminal charges. But how does civilian criminal prosecution affect a current or future security clearance? 

How the Security Clearance Process Evaluates Criminal Conduct

Federal regulations establish various guidelines for applicants and current holders of security clearances, under which government officials determine whether to grant an applicant a security clearance, renew a current holder’s clearance, or revoke a security clearance. These guidelines cover topics like foreign influence, financial considerations, personal conduct, drug and alcohol use, and criminal conduct. The guideline for evaluating criminal conduct notes that such conduct raises concerns about an individual’s judgment, reliability, and trustworthiness. Under the guideline, conditions that could disqualify an individual from a security clearance include allegations of criminal conduct, whether or not an individual faced formal charges, a single serious crime, or multiple lesser offenses.

Can Civilian Charges Affect Security Clearance Without a Conviction?

A person’s experience with the civilian criminal justice system typically involves three phases: arrest, charges, and conviction. Civilian law enforcement may arrest a person on suspicion of a crime, but prosecutors may determine that they lack sufficient evidence to support formal charges. Alternatively, prosecutors may decide to file charges against an individual, which may result in a dismissal of those charges by the court, the individual’s guilty plea, a verdict after trial, or, for some offenses, an alternative disposition like drug court. 

Federal security clearance guidelines allow officials to consider charged criminal conduct, even if an individual’s charges have not yet resulted in a formal adjudication. Evaluators can assess the facts and evidence underlying the criminal charges, not just the prosecution’s status or outcome. 

Types of Civilian Criminal Charges Likely to Affect Clearance

More serious offenses will have a greater chance of jeopardizing a person’s eligibility for a security clearance, such as:

• Violent offenses like assault or domestic abuse
• Drug offenses, including simple possession or possession with intent to distribute
• DUI offenses, including drug-related DUI, repeated intoxicated driving, or causing injury or death while DUI
• White-collar crimes like fraud, embezzlement, or money laundering
• Crimes of dishonesty or moral turpitude, like theft offenses, bribery, or official misconduct

Reporting Requirements and Self-Disclosure Obligations

Individuals who apply for or hold security clearances have a duty to report arrests, criminal charges, and any other contact with law enforcement. Should an applicant have contact with the civilian criminal justice system during the review period for their application, they must contact security clearance officials to update their application to report such contact. Failing to disclose alleged criminal conduct may result in the suspension, revocation, or non-renewal of a security clearance or the denial of a clearance application. Alternatively, officials may revoke or deny a clearance due to the individual’s lack of candor in failing to promptly report contact with the criminal justice system. 

Mitigating Factors for Civilian Criminal Charges

Under the security clearance evaluation guidelines, some of the mitigating factors that evaluators might consider in deciding to grant, renew, or retain a person’s security clearance despite their civilian criminal charges include:

• The passage of time since the alleged or convicted criminal conduct
• The isolated nature of a criminal offense
• Conditions that pressured or coerced the individual into a criminal act, which no longer exist in the individual’s life
• The individual did not voluntarily commit the act
• The factors leading to the criminal act will likely not recur
• The individual’s criminal charges resulted in an acquittal at trial
• The individual presents significant evidence of successful rehabilitation

Contact Our Firm Today

Although facing prosecution in a civilian criminal court may have significant consequences on your ability to obtain or retain a U.S. government security clearance, hiring experienced legal counsel can help you evaluate your legal options for addressing the effect of civilian criminal charges. Contact Patriots Law Group today for a confidential consultation with a security clearances attorney to learn how civilian criminal charges may affect your security clearance application or potentially jeopardize your existing clearance.