It is that magic time, every four years, when my email inbox and voicemail explodes with long-lost buddies dating from my years as a federal executive holding a security clearance.

The conversations normally start with a catch-up discussion of the prior two, four, eight, or 15 years since our last talk. Now, Washington is a rarified place. One of these recent discussions was with a corporate security officer handling a client’s case. The last time we spoke, he was actually interrogating me as a witness, and he was the special agent. He overstepped his authorities and NIS was reorganized into NCIS as a result. But we just picked up like old fraternity brothers.

These discussions frequently shift and the caller’s tone swiftly changes, and they then drop the name of some senior official or former client of mine who said they should call me to discuss “an uncomfortable situation.” Awkward, to say the least. The discussions may then turn to adultery, drug use, financial problems, sexual kink, hooking with foreigners, or an arrest (or two). And it normally ends with the caller divulging the Administration position they are being considered for, possibly a plumb senior position from the President-elect or on Capitol Hill. Even more spicey, sometimes their new potential role involves something requiring a green-table appearance before Senators with glaring sharp teeth, ready to gnash and bite.

As a military and security clearance attorney, I usually start by noting I held a security clearance from 2004 to 2018, having been arrested on the battleship IOWA (BB-61) for charges unspecified in 1989. When you’re read your Miranda rights, it clears your sinuses, to say the least. You remember the event. When a caller expresses disbelief and asks how I resolved my situation, I recount my call to Mom, who then confronted the Chief of Naval Operations in the liquor store at NAS Oceana, and who reminded him the last time they chatted, he was barking at women under the toilet stalls at the Officers’ Club at Little Creek. My chicken salad sandwich with Admiral Mike Boorda followed. I was out of the dog pound.

Frankly, almost all baggage can be shifted in a person’s appointment. Lying, however, is very hard to fix. But most alleged “lying” is not a false statement in Washington, it is a misstatement, and the difference is huge. But when you start shoveling to cover your tracks, you are showing official Washington what you will do in the event of a screwup going forward. The Washington Establishment then has to decide whether they want your stink on them.

The advice I then provide depends on a multitude of factors: how long ago was the situation requiring a fix, whether the caller needs a secret or top-secret security clearance, and whether they will need Senate confirmation. These are some factors that go into the advice that our Firm provides on whether they should proceed with the appointment or drop out of consideration altogether before signing paperwork that could have long-term negative consequences. This is when the caller needs to decide whether to fish or cut bait to focus on “family concerns” or “other professional opportunities.”

Washington lawyers like myself provide advice that Administration handlers — including government attorneys — cannot provide. Our loyalty is to our clients, not the Administration. As a pre-Monica Lewinsky Clinton intern in 1993, I worked the Attorney General and Civil Rights Division confirmation processes and saw firsthand how lonely the appointment process can get. Two well respected judges, Zoë Baird and then Kimba Wood, imploded, leaving a relatively unknown Janet Reno on the President’s dance card. Reno went on to become the first female U.S. attorney general She survived the grueling process; Baird and Wood did not.

But the really disheartening failed confirmation was Lani Guinier for Assistant Attorney General for Civil Rights. We had buckets of documentation on her life and work. At a pre-rollout session, I asked if one of her law review articles would be an issue, and political consultant James Carville piped up, “kid, nobody reads that shit.” Deval Patrick, future Massachusetts governor, moved up on the list, and joined Janet Reno in the Department of Justice.

In all of these appointments, there were way too many premature discussions with Administration officials and a failure to walk through the liabilities in a protected, client-attorney relationship. Wood probably should have been Attorney General; Guinier definitely was salvageable, despite the perceived radicalism of her writings. What she needed was a federal appointment and communications strategy. That begins with discussions with the appointee’s counsel, protected by attorney-client privilege, to map the liabilities. That is the last place inside the Beltway where a secret is kept secret.

The easiest situations are when the person does not need any security clearance and does not need Senate confirmation, with the hardest situations being those positions that require Senate confirmation and/or lifestyle polygraph investigations.

The good thing for most people is that no matter how scary the process may seem at the beginning, many with really heavy baggage get through the gauntlet. When I was a security officer for the old Middle East Force and when I oversighted security cases for National Intelligence Director James Clapper, I often saw cases I thought were real bombs. But similar cases result in wins all the time here at my firm. The reason is simple, the road was hacked before the applicant needed to travel it.

Think about these Federal employees who brought to the background investigation significant liabilities and successfully cleared the process:

• In one case triggering Guidelines D and E, a federal clearance holder keen on diaper sexual gratification was cleared by the Defense Office of Hearings and Appeals.

• Shortly thereafter, the NSA Access Appeals Panel cleared an applicant who shared bondage, discipline, dominance, submission, sadism, and masochism (BDSM) with his spouse, and who then joined the Federal workforce with a clearance.
• DWI arrests are common enough and are readily resolved.
• Dealing drugs, taboo a generation ago for clearance holders, has been successfully adjudicated.
• And finally, having ties to questionable foreign jurisdictions is not an absolute bar to Federal office.

Our Republic is a tough old bird. Those of us coming to maturity over the past half century have perhaps forgotten how crazy can be a system of government marked by transparency and candor. It is not a forum for the thin-skinned or ill-prepared. The appointment process is not a time for amateur counsel. Only apolitical law firms inside the Beltway can provide effective advice based on legal and political process. It is a process that keeps the Nation moving along.

Tully Rinckey has represented good-folks-doing-past-stupid-human-tricks destined for the West Wing, the E-Ring, and specially-paned window offices at Langley and Fort Meade, in every Administration since Tully Rinckey was founded over 20 years ago. Our success rate and our ability to keep sensitive situations out of the public limelight is the reason we stay so busy in the first six to nine months of a new Administration and in the first four to six months of a new Congress, when the leadership flips between parties.

If you are a bit mopey over a change in your career direction or freaked by having to step up after winds shifted for you, do not pull away from the process. Get counsel, and get back in the ring and fight for what you believe in, with Tully Rinckey in your corner.

Tully Rinckey attorneys understand that issues involving security clearances can be challenging, and they will handle your matter with the attention and tact it deserves. If you have additional questions about maintaining or obtaining a security clearance, our team of attorneys is available to assist you today. Please call 8885294543 to schedule a consultation, or schedule a consultation online.

Dan Meyer, Esq. is a Partner at Tully Rinckey PLLC’s Washington, D.C. office and has dedicated more than 25 years of service to the field of Federal Employment and National Security law as both a practicing attorney and federal investigator and senior executive. He is a lead in advocating for service members, Federal civilian employees, and contractors as they fight to retain their credentialing, suitability and security clearances.