One of the most urgent questions I get as a Chicago criminal lawyer from people arrested and accused of a crime in Illinois is whether the arrest will affect getting or renewing a security clearance. A security clearance is a status the government grants after a thorough background check to over a million Americans in jobs ranging from private contractors on government projects to soldiers. The question of whether one bad night or error in judgment will affect your security clearance is crucial not only because people with security clearances are in high demand and are in the top ten percent of America’s wage earners, but also, because it may be your dream to serve your country in a position that requires a security clearance.
The short answer is that an arrest does not have to mean you will automatically be denied a security clearance. This is especially true if your case is, from the start, properly handled in order to maximize the chances of (a) avoiding jail (b) avoiding a conviction and (c) avoiding a guilty plea. Hundreds of thousands of people with imperfect records have security clearances. And while any arrest or court case may red flag your security clearance application for further investigation, accomplish these three objectives and any further investigation into the case will reveal only the cleanest and best possible results.
The Department of Defense uses standards published in the Code of Federal Regulations to decide whether to grant a security clearance. The process is designed to determine your “loyalty, reliability, and trustworthiness” using an “overall common sense determination based upon all available facts.” 32 CFR 154.6-7. The criteria for determining whether a person should be denied a security clearance based on a prior criminal matter is done on a case by case basis and is too complex to fully cover in this article, however, there are some general principles codified in Appendix H to 32 CFR 154 that you can take advantage of now to maximize your chances of getting or renewing your security clearance:
- Evidence that you did not commit the offense is looked at favorably in determining whether or not to grant you a clearance. It is therefore crucial, to your case as well as the clearance review process, that a prompt and aggressive investigation in the form of subpoenas and court orders secure any evidence of your innocence that can be easily lost or destroyed such as a video or text message. What this also means is that, while felonies such as sexual assault and crimes of dishonesty such as retail theft have more damage potential than misdemeanors like disorderly conduct or battery, even being accused of a serious felony does not have to mean your clearance will be denied if the evidence indicates that you did not commit the offense,
- The fact that you were pressured or coerced into committing the act and those pressures are no longer in your life is also a factor; it is therefore best to cut those bad influences out of your life now,
- If the case is dismissed without a conviction or guilty plea you will have a greater chance of obtaining or renewing your security clearance. The best way to do this is to uncover weaknesses in the case against you through a prompt and aggressive investigation or by getting into a deferred prosecution agreement. For more on agreements with the prosecution that avoid guilty pleas and convictions please read my article Avoiding a Criminal Conviction in Cook County and Illinois.
While the police officer who arrested you may have told you that you have nothing to worry about, if you are looking to obtain or renew a security clearance, you know better. Each case is different and the process is too complex and fluid for this article to be anything more than an introduction to the interplay between an arrest and the security clearance process. The bottom line, however, is that an arrest does not have to mean you have to give up your job or your dreams if your case is handled properly from the beginning.