One of the most common questions heard from cleared employees is: “I purchased, smoked, or consumed marijuana. Is there any chance I can obtain or maintain my security clearance?”

While there is not a straightforward answer, in short, marijuana still remains an illegal Schedule 1 drug and controlled substance to the federal government, which would certainly put your chances of obtaining or maintaining a security clearance in jeopardy.

Currently, 38 states allow individuals to smoke marijuana for medical reasons and 23 allow for recreational use, but this doesn’t matter to the federal government. Unfortunately, this has led many individuals, including gun owners, security clearance holders, and service members, to find out the hard way and suffer the consequences for prior marijuana use.

Anyone with a history of marijuana usage should be aware of the potential consequences as well as the applicable guidelines and triggers, as well as how to mitigate those concerns to best protect yourself should you be questioned on it.

Guideline H Violations: Drug Involvement and Substance Misuse

While there are many different actions that can trigger Guideline H concerns, the most common is marijuana use prior to obtaining a security clearance. In this situation, there are many crucial factors considered by the federal government when it comes to assessing if they can maintain trust in the cleared individual or hopeful. Some of these issues might include:

• When the usage occurred and any duration of abstinence from the last usage;
• The frequency, duration, and context of use;
• Whether you voluntarily sought evaluation, counseling, or other treatment;
• Whether you possessed a clearance at the time of your use, and
• Whether you possess the intent to continue using any controlled or illegal substances.

Another common pitfall that many clearance holders fall into is that now that marijuana is legal at the state level and the cannabis industry has begun to take off, people have begun to invest in marijuana companies, or ETs, mutual funds, and index funds that might contain cannabis-connected businesses. While investing unknowingly in a company probably won’t result in negative action being taken, some agencies require financial disclosures, so it’s best to be careful to avoid any federally illegal investments. Intentionally seeking opportunities and investing in marijuana, even through a retirement plan or 401K, is taking part in the purchase and sale of marijuana and will result in action being taken against you.

To read more about how marijuana investments could impact your security clearance, check out our blog on the topic here.

Another important factor to consider is how the government learned of the usage (proactive affirmative disclosure, disclosure in anticipation of being caught, failing a drug test, etc.). While the worst-case scenario would be getting caught while possessing a clearance, the second worst would be failing to report current or prior usage when asked, as that is clear evidence that the usage poses a risk that could be used to coerce or influence you to make decisions contrary to our nation’s best interest.

Guideline E Violations: Personal Conduct

Speaking of how the government becomes aware of your drug usage, if you are tied to any drug use, improper investments, or other association with illegal substances and you do not self-report, you would also most likely face a personal conduct violation for intentionally withholding this information. Furthermore, if you do choose to self-report any contact, possession, or usage of illegal substances, along with proper mitigating factors, you may actually have a better chance of maintaining your clearance since your willingness to come forward with the issues displays to the federal government that you are willing to comply with rules and regulations, despite any prior slip-ups you may have had.

Since the main concern of Guideline E is whether or not a clearance holder’s conduct begets dishonesty, unreliability, or untrustworthiness, by choosing to hide your activity with illegal substances, it indicates to the government that you may not be the proper person to properly safeguard classified information.

Potential Mitigating Factors for the Government’s Concern about Marijuana Usage

While each case is different, knowing how to allay the government’s concerns is critical when it comes to any discussion about keeping your clearance after being linked to improper drug usage or connections. It’s impossible to cover every mitigating strategy in an article, and anyone concerned about how their history of drug usage may impact their chances of maintaining a clearance should consider consulting with experienced counsel to discuss the specifics of their situation.

That being said, when it comes to Guideline H, one of the main things the government will look at is when the involvement took place and what the intent was behind it. There is an arguable difference between unknowingly digesting an edible or having smoked years ago versus regularly lighting one up after work. Additionally, was it an isolated event, or are you consistently in situations where marijuana and other drugs might be used or offered?

When it comes to issues of personal conduct in relation to withholding information, one of the most important things to make clear is that you are taking steps to remove yourself from what caused the vulnerability in the first place. If you can show that you have taken good-faith efforts to prevent issues in the future and show willingness to correct any falsifications of any potential drug encounter, you may be able to maintain your clearance.

Don’t let Your Clearance and Career go up in Smoke

In any event, it is important that you understand that while marijuana use is becoming more accepted in everyday culture, it still remains illegal at the federal level, and the rules regarding drug involvement have stayed the same. There are many consequences, even outside of losing your clearance and career, that could happen if you get improperly tied to drug involvement. So knowing how to mitigate the government’s concern and advocate for yourself can be the difference between maintaining your clearance and losing your career.

As a Managing Partner at Tully Rinckey PLLC, Anthony Kuhn focuses much of his time on the representation of military personnel and members of the intelligence community. He has extensive experience assisting clients in navigating matters involving security clearance suspensions and revocations, appeals to the Discharge Review Boards and Boards for Correction of Military Records, UCMJ violations and non-judicial punishment, appeals for service-connection before the Department of Veterans Affairs, rebuttals to GOMORs and QMP selection notifications and requests for Special Selection Boards. He also serves as the Chair of the National Security Lawyers Association. He can be reached at info@tullylegal.com or at (888) 229-5019.