LCWINS

LCWINS Webinar #4: Vetting, Security Clearances & Ethics

Notes and Q&A

Below are answers to the questions we received during the LCWINS webinar on Vetting, Security Clearances & Ethics, conducted on September 15, 2020.  These answers were drafted in conversation with the panelists after the session and are also based on information LCWINS has obtained throughout this series.  The opinions below are reflective of only a few viewpoints and may be contradicted by other advice from other sources.  This document is attributable only to LCWINS.  None of the content below constitutes legal advice.  If you seek legal advice, please contact individual private counsel. These notes are also available in a Google Doc.

Overarching Notes

When you become a “person being considered” for political appointment, the White House Office of Presidential Personnel (PPO) or an agency or department’s White House Liaison will reach out to you.  They will connect you with a vetting attorney and walk you through the process.  They will also provide you with the SF-86 (security clearance investigation form) and OGE 278 (financial disclosure form).  Please look at these forms immediately and familiarize yourself with the questions.  The SF-86 is 136 pages long.  The OGE 278 could be even longer, depending on your financial situation.

The White House attorneys and staff are not representing you - they represent the interests of the White House and the Administration.  Depending on the complexity of your finances and other issues in your past, it may make sense to consult with a private attorney who can answer questions about your individual circumstances with your best interests as their priority.  

Most important, above all, is to be truthful and comprehensive.  Do not self-censor or hold back.  The forms are cumbersome.  Starting to prepare early will save you time and frustration down the road.  Although the process may feel intrusive, maximum disclosure upfront is the best strategy for ultimate success.  If the White House ever got the sense that “persons being considered” were not being fully forthcoming, the vetting and ethics standards became much higher for their clearance.  

Resources:

  • The Partnership for Public Service Center for Presidential Transition Ready to Serve website is an amazing and up-to-date resource.  
    Ready to Serve is doing three additional webinars on this topic!

Security Clearances

Does it help if you already hold a security clearance?

It can be helpful to move the process along faster if your clearance is still active.  Depending on how old the clearance is, you may need a reinvestigation or to start over.  Significant changes in your life may make the process take a while, even if you have previously held a clearance.  If your clearance was obtained through a different agency or department than the one you seek to join, you may have to start over.

Your competitiveness for a position might be slightly enhanced by a security clearance, but successful previous vetting clearance is a higher priority.

Is there a way to get a head start on the security clearance process?

You can download the SF-86 and get started collecting the information that you will need to fill out the form.  You will not be able to submit the form for review and investigation until you are invited to do so.  

How many years back do I need to go to fill out the form?

For questions about previous residences and contacts, you need to go back 10 years.  You will need a reference for each home and each job you have held, and then three additional references.  Be thorough.  Valid cell numbers, physical addresses, and email addresses will assist the investigator and it will slow things down if you don’t have them.

On employment, please make sure you give the address even if the company no longer exists.   Provide immediate supervisor’s name and address/telephone number if you have it.  If the supervisor is deceased, please advise and offer another manager name/address if you have it.

How long does the process take?  Will I get process updates?

These days, a baseline Top Secret clearance (without SCI) takes between 80-150 days. Timelines are faster for lower clearance levels (i.e. Secret, Confidential) and for Public Trust investigations.  Most, if not all, senior political appointments in the national security field require a Top Secret clearance, and at the very least a Secret clearance.  

You may or may not get process updates.  Once an investigator is assigned, they may reach out to you for more information.  There may also be a personal interview.  

What if I am a dual citizen?

Dual citizens can obtain security clearances.  You should ask yourself, however, whether your connection to the United States outweighs your connection to any other country.  Ultimately, your service may require you to choose.  Be honest with yourself and the folks in the process about where you stand.  

In some cases, dual citizenship can be quite useful.  In other circumstances, you may be required to surrender your other passport in order to obtain or remain in a position.  

Is the DOD clearance process different from the CIA clearance process?

Yes, it is a slightly different process at CIA. However, there are very few Senate-confirmed political appointments (or political appointments at all) in the Office of the Director of National Intelligence, CIA and NRO.  If you are interested in learning more about the clearance process for these Intelligence Community jobs, reach out and we’ll help you find more information!

Will significant foreign contacts and/or family delay or jeopardize my chances of obtaining a security clearance?

There are many people with significant foreign contacts and family abroad, even in countries with challenging relationships with the United States, who have obtained security clearances.  Providing as much information up front as possible will help expedite the investigation process.  Merely having family abroad is not going to jeopardize your chances.  Connection to a terrorism network is problematic.  

What does it mean to have a “connection” to a terrorism network?

Please take a look at the SF-86 to better understand the questions and how they are framed.  For the purpose of the terrorism-related questions, terrorism is defined as any criminal acts that involve violence or are dangerous to human life and appear to be intended to intimidate or coerce a civilian population to influence the policy of a government by intimidation or coercion or to affect the conduct of a government by mass destruction, assassination or kidnapping.  If you have a personal concern about how these questions affect you, please consider consulting with your own private individual counsel on this matter.

Do I need to disclose foreign contacts on social media?  What about foreign colleagues?  What is the standard for who qualifies as a “foreign contact”?

If you are ever in doubt about whether you should be disclosing a contact, then you should disclose.  There is no penalty for over-disclosure, but there are penalties for withholding; criminal penalties as well as potentially jeopardizing your security clearance prospect.  You should familiarize yourself with all of the definitions in the form.  In this case, “close and continuous contact” is the standard for who is a foreign contact, which is quite broad.  If you have personal concerns about your foreign contacts, you might consider consulting with your own private individual counsel on the matter.

What if I am worried about past history of mental health treatment?

The SF 86 questions on mental health have been updated to be less intrusive than they used to be.  Your investigator can and should work with you to work through these issues.  This website, although targeted at the military, might help answer some of your questions about what they can or cannot ask.

Nevertheless, if you believe that your past history of mental health treatment might be relevant, then you should disclose that information.  It is usually not disqualifying on its own, but those determinations are made on a case-by-case basis.  Withholding responsive information can be grounds to have clearance denied or revoked.  It can be difficult to share this information, but it is often in your best interest to err on the side of disclosure.  Once again, consultation with your own private individual counsel is an option if you have further questions related to your specific circumstances.

What if I have issues related to sexual trauma in my past?

Issues related to sexual trauma are typically irrelevant to the clearance process and are not mental health issues.  You can answer “no” to having received mental health treatment if the counseling was related to the trauma.  Nevertheless, there may be reasons that past history of any trauma would be relevant for clearance purposes.  When in doubt, as uncomfortable as it might be, the best answer is often to disclose.  Consultation with your own private individual counsel is an option if you have further questions related to your specific circumstances.

What if I didn’t have stable housing for a period of time (e.g. while traveling and working abroad)?  Should I really be listing every hotel/hostel/home I stayed in?

You should do your best to answer the questions on the form to your maximum ability.  If you have personal concerns about this disclosure, you may want to consult with private individual counsel on the matter.  Withholding information on this form may result in criminal penalties and it can be grounds for denial or revocation of a clearance.

Are spouses, family, cohabitants, etc. investigated as well?  

Family members and relationships must be reported on the SF-86 and your investigator will look into their backgrounds as well.  They are not being investigated per se - the focal point of the investigation is your suitability for a security clearance.  

When is a polygraph required?

The hiring agency will let you know if a position requires a polygraph in advance.  Very few Senate-confirmed political appointments require a polygraph, but in the Intelligence Community they might.  If you need access to specific programs, you may later be asked to take a polygraph even after you are initially cleared at the Secret or Top Secret level.  

Vetting

How long does the process take?

It can take as little as 6 weeks or as much as 6 months (or longer).

Is it helpful if I have previously been vetted and confirmed by the Senate?

Yes, previous successful vetting and Senate confirmation is an indication of potential future success and it does provide some advantage.  However, personal and political circumstances can change between instances of vetting and Senate confirmation.  You will have to go through the entire process again, and new information may impact the outcome.

How will social media use influence a confirmation process? What are best practices around social media?  

If you have been a part of the normal conversation, you will likely be fine.  If you said things or took positions outside of the normal conversation, issues may arise.  Take a look at your posts and your social media engagement through the lens of an opponent of your nomination.  Think about whether certain pictures, even from your youth, might lead people to question your judgment.  Now is the time to start cleaning things up; it is better to do so sooner rather than later.  Video and images are often more damning than writings.  

Should I delete my account if I fear that folks engaging with me have said things that are problematic or if I regret things I have posted?

You do not have to delete your account, but unfriend/block any person that is problematic.  If you have posts that you later regret, make a note of it for yourself and then delete the posts.  In general, you will not be held responsible for what others say. Please have a frank discussion with your appointed vetting officer to cover yourself (including a discussion about any posts you have regretted and deleted) and they will provide guidance.  Anything that can be a sound byte (i.e. audio or video) holds much more weight for vetting purposes.

Can my private Facebook that I only use for family and friends remain private?

Through the vetting process, the White House seeks to discover issues that might jeopardize your nomination or the work of the Administration.  If information is discoverable by a person who seeks to oppose your nomination, then it is not private.  Although the White House will strive to keep everything you disclose private, there is no overarching right to privacy in this setting.  

What if I have been defamed unfairly or am being sued unfairly?  Will those things be held against me?

Even though you think the lawsuit or defamation are unfair, any open disputes will be reviewed closely.  The vetting and confirmation process will not want to step into the shoes of the court and decide a contested case.  If the bad faith is clear, you should try to make that as clear as possible.  

What if I have close family members with drug or criminal histories or problematic views?  Is that a problem from a vetting and/or security clearance perspective?  

These issues are only a concern from the security clearance perspective if they are potential concerns for blackmail.  If you do have concerns about criminal behavior in your family, you may want to consult individual private counsel.  For vetting, criminal activities even by close relatives are generally not problematic, unless there’s some sense that you enabled, participated in, or covered up those offenses.

There is a perception that there might be some ageism at play against potential appointees who are 70 or older.  What was your experience - was that the case?

None that our speakers were aware of.  

Ethics & Financial Disclosure

How many years back does the OGE-278 go?

You will need the last five years’ worth of tax records.  Pulling those now might be helpful.

What type of financial disclosure is required?

Do not hold back on your disclosure form.  Disclose everything that is requested and err on the side of over-disclosure.  

Especially if you are a high net-worth individual, reach out to your financial advisor now and start pulling the last five years of your tax records.  Use a CPA if possible, or make sure you’re comprehensive about providing all documentation.  

People want coaching points, but don’t do the personal homework to prep ahead of time.  Do your homework and know what is in your financial records before you start asking questions.  Pull your own credit reports and refresh your memory on your own financial history.

Depending on your position, you will need to complete the OGE-278 or the OGE-450.   These forms will ask for varying degrees of detail and history on sources of income, location of assets, and other financial ties. You should start to collect the information you would need to complete these forms as soon as you think your vetting is reasonably possible.

What advice can I give my financial advisor now about things to do or things to avoid?

If you have any issues related to non-compliance with tax law, now is the time to clean that up.  Tax issues are the most frequent reason people do not succeed in the vetting process.  Taxes associated with domestic help, home office deductions and other little messy deductions were the most frequent issues people had associated with taxes; those issues caused the White House to walk away from certain potential nominees.  Ensure that you are 100% compliant.  

You may also run into complications with investments or holdings that cannot be valued (holdings in early stage or private companies for which there is no public market) or sold and you may need to divest as a result of a potential conflict of interest.  Identifying those issues now will help you resolve those questions more efficiently and effectively later.

What if your spouse has significant wealth or complicated finances?

Work with your financial advisor and vetting officer, be upfront and specific.  Generally, your spouse’s holdings will be treated as your own for purposes of ethics review.

What if I am a registered lobbyist?

In the Trump Administration this has not been an issue.  In a potential future Biden Administration, registered lobbyists and FARA registrants may have issues with vetting.  If you are serious about pursuing a political appointment, you may want to consider cleansing.  At the very least, ensure that your registration and FARA compliance are above reproach.  Please also see LCWINS’ notes from Webinar #2 on this topic.  

What are the rules regarding domestic help?  What is and is not problematic?

Please check with your accountant or a tax professional.  This website should be helpful: https://www.irs.gov/taxtopics/tc756.  Hiring domestic help for $2200 or more to an individual employee during 2020 requires withholding and payment of taxes.  (In 2019, it was $2100.)  

Historically issues related to employees’ legal status to work in the United States have been raised in the political appointment process.

Getting Help with the Process

Would recommend working with your own legal counsel along with the transition/vetting officers that are provided.

The Transition Team or Presidential Personnel Office (depending on the timeframe and outcome of the election) will handle everything from their perspective.  However, they will rely on you to fill out the necessary forms (SF-86 and OGE 278) thoroughly and accurately, and they may require your help along the way with follow-up questions and diligent responsiveness.  If you require help on your end with the forms or with responding to additional questions, then you may want to consider hiring an attorney or an accountant to help you.  

Based on those experienced in the process, outside counsel is most useful with regard to complicated or unique issues that arise in the ethics review. They have generally been less helpful in the security clearance and vetting process.  You may want to consult counsel if you have significant and complex financial holdings that are likely to create a conflict for a few reasons: there is a public body of law (regulatory and court findings) in these areas; understanding the unique nature of your financial picture can take time that you’re willing to spend but the White House is not; and there can be a real pecuniary value to you.

LCWINS is currently looking into ways we can help support women candidates through the nomination and confirmation process.  If you have ideas, please let us know!  Send us an email at info@lcwins.org.  

How do you find outside counsel that is familiar with this process?

LCWINS will not endorse any specific law firm or individual attorney for any purpose.  We may be able to provide a referral if you contact us at info@lcwins.org without any implied or explicit endorsement.