By John V. Berry, www.berrylegal.com
White House appointees have unique security clearance issues. This article discusses some of the issues that affect this unique class of individuals. We have represented individuals in the White House in the security clearance process previously and the process can vary depending on the type of employee at issue. This article discusses the security clearance process for White House appointees for new positions in the White House and in positions which fall under White House jurisdiction (e.g. Council of Economic Advisors, Council on Environmental Quality, Office of National Drug Control Policy and others).
The Security Clearance Process for White House Positions
For White House appointments, individuals will be required to undergo a security clearance review. For these types of positions, the Federal Bureau of Investigation (FBI) has been designated as the federal agency to conduct these security clearance investigations. These individuals will be asked to complete an SF-86 form (also known as e-QIP) to begin their clearance investigation. In these forms, these applicants will also sign a release allowing the FBI to obtain any criminal and civil records, in addition to conducting a credit background check.
Once the initial security clearance forms are completed and reviewed, the individual will be interviewed by FBI investigators and a security clearance investigation will begin in earnest. An applicant going through this process can expect a thorough investigation by the FBI. Friends, relatives, references and possibly foreign contacts known by an applicant will be interviewed and available background information will be examined. The FBI’s goal in investigating an applicant for a White House position is to attempt to uncover whether they could be susceptible to any sort of influence or blackmail that might cause them to disclose classified information.
When their investigation is complete, the FBI does not render a decision or recommendation. As the FBI stated in February of 2018:
“The FBI does not grant, deny, or otherwise adjudicate security clearances for individuals on behalf of these clients; nor does it make any security clearance recommendations. After the FBI has completed a background investigation, it provides the information to the client agency adjudicator authority, who determines whether to grant or deny the security clearance.”
CBS Report on FBI White House Investigations, Feb. 13, 2018.
The applicant’s full FBI background investigation will then be given to the personnel security division of the Executive Office of the President (EOP), which handles security clearance reviews. These are professional career officials that oversee the security clearance process for White House appointees. Once they receive the FBI investigation, they will review it and make a determination as to whether or not a security clearance should be granted. The EOP will review security clearance decisions in light of the adjudicative guidelines in Security Executive Agent Directive 4 (SEAD 4). The EOP decision will generally be controlling absent further action on behalf of or by the President.
Decision on Security Clearances for White House Employees or Appointees
While a President retains the ultimate say as to whether or not to grant an individual’s security clearance, they have usually deferred (for the most part) to clearance recommendations by the EOP. There is a good reason for this. Most presidents do not want to be seen as showing favoritism towards an individual that has significant security risks for important appointments. For this level of appointment, if an individual’s security clearance is denied, they are unlikely to be able to hold their position. In contrast to other federal agencies, White House appointees have less access to due process in contesting security clearance determinations.
While politics can clearly play a role in allowing an appointee the ability to respond to negative clearance concerns with mitigating information, there is less of an entitlement to due process given that White House appointees serve at the pleasure of the President. This is different than the situation that occurs with career employees of the EOP that are able to respond to security clearance concerns and receive an ability to respond to adverse clearance determinations. EOP employees generally have due process rights under Executive Order 12968, which would include the ability to respond.
We represent individuals in security clearance matters before the White House and all other federal agencies. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070 to schedule a meeting to go over individual issues and potential representation.