From speeding to pot smoking to, in one case, ownership of a Canadian brewery, rank-and-file government employees often see their security clearances challenged, denied or revoked for issues they consider relatively minor.

Which makes them all the more frustrated to see White House staffers with major red flags in their backgrounds given permission to handle classified information.


Lawyers say they’ve seen government workers and federal contractors run into serious clearance problems over occasional marijuana use, routine debts or small-scale foreign investments while top Trump officials like former staff secretary Rob Porter worked with a clearance for about a year despite allegations of spousal abuse. President Donald Trump’s son-in-law, Jared Kushner, continues to hold a clearance despite owing tens of millions of dollars in debt — some owed to a German bank.

"They're getting away with murder," said Sheldon Cohen, a Virginia attorney who spent two decades representing workers in clearance fights. "What is going on in the White House, if it was taking place involving people at agencies or in private industry, they would never get a clearance."

During the Obama administration, one Defense Department contractor had his clearance proposed for denial on the grounds that he had investments in Canada, according to the man’s lawyer.

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"They issued a statement to deny him his clearance because he was the owner of 50 percent of a brewery in Canada and had a warehouse full of beer and other alcohol up there," said Mark Zaid, who represented the contractor. The clearance was eventually granted after Zaid protested through the Defense Department process.

White House chief of staff John Kelly issued a five-page memo last week owning up, in general terms, to a poorly run process. He's ordered a crackdown of sorts, particularly on interim clearances. The changes could put Kelly in conflict with Kushner, who has reportedly been working with an interim clearance, unless Trump grants his son-in-law and adviser a special dispensation.

Porter resigned earlier this month as questions swirled about how he'd remained at the White House in a senior role with access to classified information.

The Porter scandal and scrutiny of Kushner’s clearance has cast a bright light on the White House’s approach to clearance, one that lawyers in the field say smacks of special treatment.

"If Kushner or these other folks were just regular employees, there's no way they would have gotten interim clearances. They're receiving some special dispensation somewhere up the food chain," said Elaine Fitch, an attorney in Washington who handles cases for government employees. "It's absolutely not fair. ... Most of our clients are treated much worse than what's going on with these folks in the White House."

The FBI conducts background investigations of White House officials seeking security clearances and makes recommendations that the White House can overrule. Employees for other departments and agencies are typically assessed by Office of Personnel Management investigators or contractors.

One CIA contractor whom Cohen represented found his clearance canceled after he was charged with child endangerment for driving too fast with his children in the car, even though a judge dismissed the charges at a trial.

"He immediately reported it and had to go get counseled. The charges were thrown out by a circuit court in Virginia," Cohen recalled. "We tried to get the clearance reinstated, but the agency would never reinstate it. He lost his job at that contractor and couldn't get clearance anywhere else."

Asked how fast the man was driving, Cohen said: "It wasn't like 150 miles an hour or anything. ... I think he said he was late for Thanksgiving dinner."

While the FBI generally excuses past use of recreational drugs like marijuana, so long as the applicant is honest about it, any drug use after a clearance is issued can be a death knell — even for pot smoking in states or cities where it is legal.

Fitch said one of her clients "smoked pot two times while they had clearance, and that was the end of that."

Cohen recalled the case of an Obama White House aide who was immediately escorted off the grounds for suspected drug use.

"I represented someone who was on the White House staff and failed a random drug test. He was out before the end of the day," the attorney said.

Lawyers cited debt as another recurring problem. Clearances are often denied for failure to pay debts on time, or for money owed to foreigners. Sometimes just the sheer amount of money owed is grounds for a denial, even if someone isn't in arrears.

"I've had people denied clearance based upon school debt that they had, about $300,000 to $400,000 in combined college and grad school debt, even though they were timely in paying it," said Zaid, who also handles national security cases including Freedom of Information Act litigation for POLITICO reporters.

A recently released financial disclosure by Kushner's wife, Ivanka Trump, showed that during the early months of 2016, Kushner's indebtedness increased under three separate unsecured lines of credit. The changes took the couple's reported debts to a range of approximately $31 million to $155 million last June from a range of between about $19 million and $98 million reported last March.

How their financial picture has changed since last summer is unknown.

One of the credit lines, valued at $5 million to $25 million in both the March and June reports, is from Germany-based Deutsche Bank. A portion of Kushner's financial holdings was sold to a family trust last year, but many assets are still owned by him. His family’s real estate projects have incurred even larger loans from Deutsche Bank as well as partnerships with investors in Israel and financing from Chinese nationals.

Experienced security clearance lawyers say the debts and various foreign ties could be an insurmountable problem for Kushner's clearance if he were applying via one of the various intelligence agencies.

However, Kelly issued a statement Tuesday suggesting that despite his promise to crack down on interim clearances, a way would be found to let Kushner do his work related to Middle East peace, Mexico and other issues. The chief of staff also appeared intent on playing down the notion that the issue has spurred personal tension between the two men.

"As I told Jared days ago, I have full confidence in his ability to continue performing his duties in his foreign policy portfolio including overseeing our Israeli-Palestinian peace effort and serving as an integral part of our relationship with Mexico,” Kelly said.

“Everyone in the White House is grateful for these valuable contributions to furthering the president’s agenda,” Kelly said of Kushner. “There is no truth to any suggestion otherwise.”

A source familiar with the situation told POLITICO on Wednesday that it will be difficult for Kelly to abide by his newly announced policy and still approve a full, permanent clearance for Kushner.

“If that policy is held to, Jared would not be able to see top security information. And I don’t know if he’d be able to work in the building," said the source, who asked not to be named. “He’s either going to get an exemption which causes a big news story, or he’ll have to do something else. From what I’m seeing, they’re fighting like hell to push Kelly out to get an exception.”

President Trump — who has final say on any clearance matter — may ultimately have to resolve the issue himself. “This is one of those tough calls for the president," the source said.

Many clearance lawyers welcome Kelly's memo on tightening up the White House clearance process.

"Recent events have exposed some remaining shortcomings," the chief of staff observed. "Now is the time to take a hard look at the way the White House processes clearance requests."

Kelly also stressed the need "for the process to continue functioning without political interference."

One of his assertions did trigger sharp dissent. Kelly claimed that agencies across the government use different standards to grant clearances. Lawyers who work in the field say that, by and large, that is not true, and that agencies use the same standard to rule on clearance requests.

"The system isn't broken," Zaid said. "It's the White House system that's broken."