Legal Insider: The Security Clearance Process for New White House Appointees

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

With the new Biden Administration beginning in January, 2021 it is important to look at the issue of who can qualify to hold a position in the new Administration.

For several years (e.g. Bush 1, Clinton, Bush 2, Obama) there has been a consistent security clearance process in place for individuals to hold White House positions. Our Law Firm has represented individuals in the White House in the security clearance process.

Clearance Review for White House Position

For White House appointments, they will be required to undergo a security clearance review. For these types of positions, the Federal Bureau of Investigation (FBI) has been designated to conduct security clearance investigations. The individual will be asked to complete a SF-86 form (also known as e-QIP) to begin their clearance review. Once the initial forms are completed and reviewed, the individual will be interviewed by FBI investigators and a security clearance investigation will begin.

An applicant can expect a full and complete investigation by the FBI. Friends and relatives of an applicant will be interviewed, foreign contacts will be reviewed and background information will be examined. The FBI’s goal in investigating an applicant for a White House position is to attempt to determine whether they might be susceptible to any sort of influence or blackmail that might cause them to disclose classified information.

The applicant’s full background investigation will then be given to the personnel security division of the Executive Office of the President (EOP), which handles security clearance decisions. These are career officials that oversee the security clearance process. Once received, they will review the FBI investigation and make their determination as to whether or not a security clearance should be granted. The EOP decision will generally be controlling absent further action 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. There is a good reason for this. Most presidents do not want to be seen as showing favoritism towards an individual with security risks for important appointments.

For this level of appointment, if an individual’s 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 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 with career employees of the EOP that are able to respond to security clearance concerns and receive the ability to respond to adverse clearance determinations.

Conclusion

We represent individuals in security clearance matters. 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.