Press Club

Legal Insider: Elon Musk’s Use of Marijuana Raises Question of Whether Clearance Rules Apply Equally to All

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

Billionaire CEO of Tesla and SpaceX, Elon Musk, was recently videotaped smoking marijuana on the Joe Rogan talk show. According to reports, Mr. Musk holds a security clearance as part of his CEO role at SpaceX, a major government space contractor.

As a result, news reports first indicated that the U.S. Air Force has started an investigation into Mr. Musk’s alleged drug usage due to his holding of a security clearance.

Later, news reports indicated that there was not necessarily an investigation but that the U.S. Air Force was attempting to evaluate what to do about the issue. The question is whether or not the same rules governing every other clearance holder involving drug usage will apply to Mr. Musk if he did smoke marijuana.

My suspicion is that the answer will be no.

We often represent and defend individuals who have engaged in one-time or other minor illegal drug use (yes, the federal government still considers marijuana an illegal drug no matter where it is consumed).

Many individuals who engage in minor drug use may still lose their security clearance over even one usage, depending on the circumstances. The ultimate result will likely highlight the distinction between high level individuals and other clearance holders (the other 99%).

This sort of double standard was recently seen at the White House where the President’s son-in-law, Jared Kushner, apparently had so many foreign contacts that he had to amend his clearance submission (SF-86) multiple times (something that isn’t usually permitted for others).

The type of contacts that Mr. Kushner admitted to having, if they had involved just about anyone else, would have barred them from obtaining a security clearance.

We often represent individuals from Pakistan, Egypt, India or Taiwan, where having just a few relatives from their home country, or owning small amounts of property in that country can disqualify them from holding a security clearance.

It seems that there are now two sets of rules for security clearance holders and applicants. Those that are important or well-connected and then the rules for the rest of us. I find this to be troubling and very wrong.

In a case like Mr. Musk, it might usually take a year or perhaps over a year, for a person to be able to mitigate having engaged in even a one-time drug use issue. The point of having a system for adjudicating security clearances is to have ensure that everyone, a billionaire, the son-in-law of the President of the United States and Jim Jones (a GS-13 civilian employee for the Department of the Army) all live by the same rules.

Hopefully, the next President will see fit to take action in order to make the security clearance rules apply equally to all of us regardless of wealth or position.

We represent federal employees and government contractors in security clearance cases. We can be contacted at www.berrylegal.com or by telephone at 703-668-0070. Please also visit and like us on our Facebook and Twitter pages.

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