October 25, 2016
Robert Rizzi, Partner and Dianna Mullis, Associate, Steptoe & Johnson, LLP
This post is part of a series on lessons learned from past presidential appointments. We’re grateful for the expertise of Robert Rizzi & Dianna Mullis of Steptoe & Johnson, LLP in developing this series.
This post is part of a series on lessons learned from past presidential appointments. We’re grateful for the expertise of Robert Rizzi & Dianna Mullis of Steptoe & Johnson, LLP in developing this series. You can read Part 4 here.
Lesson #5: Past drug use will be thoroughly scrutinized
Past drug use by presidential nominees has been heavily scrutinized for a long time. Although there are many examples in which drug use has prevented prospective executive-branch nominees from serving, few of these are in the public record.
That is because the drug use “filter” is part of the security clearance process, which is supposed to be (although often is not) confidential. In addition, security clearance standards concerning drug use have evolved over time, although those standards generally are not published.
Standard Form 86 asks if the applicant in the past seven years (or at any point while holding a security clearance) has used, possessed, or sold a wide range of drugs. This includes “any controlled substance, for example, marijuana, cocaine, crack cocaine, hashish, narcotics (opium, morphine, codeine, heroin, etc.), amphetamines, depressants (barbiturates, methaqualone, tranquilizers, etc.), hallucinogenics (LSD, PCP, etc.), or prescription drugs.”
The State Department’s Bureau of Diplomatic Security, which conducts security clearances for ambassadors and other State Department appointees, currently applies a “two-year rule” for certain types of drug use. If the nominee, for example, has used marijuana within two years of the background investigation, a clearances can be denied. Since the denial of a security clearance is generally fatal to the nomination, the two-year rule is an important factor to take into account.
Notwithstanding changes in cultural norms and legalization of marijuana use in certain states, the security clearance process still focuses extensively on drug use, and field investigators press nominees and their contacts with detailed questions regarding prior drug use.
In one case involving the judicial branch, U.S. Court of Appeals Judge Douglas H. Ginsburg was nominated in November 1987 to fill a vacancy on the Supreme Court. The reason, or at least a major reason, for the failure of his nomination was Ginsburg’s admission that he had smoked marijuana a number of times after becoming a professor at the Harvard Law School in the late 1970s, that is, more than a decade before his nomination.Read Part 1Read Part 2Read Part 3Read Part 4Read Part 6