AUSA drug use question Forum

[clarion]

Nobody is saying that, as a practical matter, it's not prudent to abstain if this is the job you want. The question is if it is something that should be in the background check in the first place. I have never smoked weed so I guess I'm personally a square if you will, but I find the "square" argument itt unconvincing. If you're not going to ask if you ever went through a red light why ask this?

It does make sense to ask general questions about addictive behavior, which should include clearly legal behavior such as alcohol.

Actually, the original question was whether a certain behavior would create problems in the background check. I don't think anyone was ever asking if mj use should be in the background check, until someone came in ranting about the injustice. I also don't think the people saying that it goes to whether you're willing to break federal law are necessarily even saying that those questions *should* be in the background check; there's a difference between saying "I think the feds *should* ask about mj use" and "here are some of the reasons why the feds *do* ask about mj use." Personally, I don't think the feds should ask about it (outside of life-impairing addictions or encounters with law enforcement), but I also see a logic in asking people about whether they've done something that is, federally, still illegal, even if I don't think it's necessary.

I think this is exactly right. You can also compare it to marijuana-related banking. We have executive branch guidance telling financial institutions "yeah you can provide banking services to marijuana-related businesses if it's legal under state law." But they also say "hey btw, you have to file suspicious activity reports on a regular basis if you think a company you're doing business with is engaged in marijuana-related business." Does it make "sense" on some objective level? Arguably no. Is it what I would have financial institutions do if I were in charge of the world? Nope. But it's reasonable given that the legislative branch hasn't decided to get off its hands and legalize.

Unreasonable would be asking the question in a bg check and immediately disqualifying any candidates who have ever done weed. I don't think anyone ITT has suggested that's the case.

[Anonymous User]

grumble grumble this is a profession grumble and we must at all costs grumble grumble avoid the semblance grumble of impropriety.

Is it so crazy that prosecutors be expected to not have regularly committed crimes as an adult? I mean, this isn't a speeding ticket here. Would expect that someone who regularly shoplifts from 7-11 would also fail a background check. And don't start with the "well, it is a personal decision and doesn't hurt anyone" line. Society, through the federal congress, has determined that use of drugs is inherently dangerous and unlawful. You are free to disagree, but routinely breaking the law is certainly a relevant factor in determining if you are qualified to serve as a prosecutor.

There is a pretty sizable group of people who have never used drugs, and certainly never as an adult, and feels like that is the more natural group to become prosecutors. I certainly would be very nervous about starting a background check if I had any post-undergrad drug use.

You're right. It's not a speeding ticket. It's less than a speeding ticket. No one is ever punished federally for small amounts of weed. And before you bring up the "feeding the market" bullshit, the federal government ITSELF is actively declining to enforce federal law against dispensaries that sell huge quantities of weed in broad daylight pursuant to state law. And in fact the federal government is generating revenue from such activities by collecting taxes from these dispensaries.

I agree with the general argument that prosecutors should be law-abiding people. Of course they should. But this purely formalistic argument about how the fact that you've technically broken a law that is never actually enforced against anyone shows you are unfit to be a prosecutor is laughable.

Pretty sure there is something to the notion that we don't want prosecutors who willfully violate a federal law knowing that you're doing so on the basis that enforcement is lax.

No shortage of talent for AUSAs, so all else being equal I'd prefer to not have the one that willfully violates the law because they disagree with the policy.

It's not hard to abstain from smoking weed, and fed questionnaires go back long enough so if you do it in college it's NBD.

This is a ridiculous straw man. Enforcement is not lax. It is non-existent. And it's more than that: The federal government is actively collecting revenue from the market for weed like it does for other lawful businesses. This represents a decision from the highest levels of the executive branch not to enforce the law in this way.

My argument doesn't need to rely on a policy disagreement. It has to do with whether a given activity would make your enforcement of the law as an AUSA hypocritical because of unclean hands. I'm showing you exactly why personal weed use is in no way inconsistent with respect for (and compliance with) the law. And you're obtusely regurgitating the same argument without really addressing the question, which boils down essentially to practical reality be damned.

But even if the law is just a formalistic shell at this point (which it is not, even it is rarely prosecuted), it is still the law, so your personal weed use is by definition not compliant with the law. I mean, if you want to smoke weed, just go do one of the 100s of legal jobs that doesn't require you not to smoke weed -- I don't understand the intense vitriol here over a pretty straightforward policy.

Again, it's not rarely prosecuted. Small-time personal weed use is *never* prosecuted federally because this administration (and the last one and the one before that) has decided it is not worth the feds' time, and, largely not a matter of federal concern. AUSAs work for the executive branch, not Congress. So I'm really not sure where you derive this duty to obey the law to the letter as if it were hypothetically going to be enforced. I mean, do you think anyone who illegally downloaded a song in college should also be disqualified from being a prosecutor?

[Anonymous User]

OP here (started this thread about post-law school drug use and also with the significant other who smokes weed a few times a week). I obviously wish I had the foresight to just not have used drugs during law school/during my bar trip, just like I wish I had the foresight to have interned for or been a paralegal for the USAO/DOJ among other things, but here we are -- just want to say I appreciate all the responses. It looks like at most, it reflects poor judgment but isn't dispositive (and probably to a certain extent depends on the predilections of each USA).

[Anonymous User]

Again, it's not rarely prosecuted. Small-time personal weed use is *never* prosecuted federally because this administration (and the last one and the one before that) has decided it is not worth the feds' time, and, largely not a matter of federal concern. AUSAs work for the executive branch, not Congress. So I'm really not sure where you derive this duty to obey the law to the letter as if it were hypothetically going to be enforced. I mean, do you think anyone who illegally downloaded a song in college should also be disqualified from being a prosecutor?

Illegally downloaded a song in college = smoking weed once in college. No one has claimed either of those things disqualifies you from being a prosecutor (seriously, NO ONE has said breaking the law once is a problem. Even the biggest supporter in this thread of asking about mj use because it's illegal has used words like "regularly" committing crimes. You need to stop tilting at the windmill that one use of mj disqualifies someone).

I mean, look, you're right, the feds exercise discretion in deciding what to charge and what not to charge, and they've chosen to exercise that discretion not to prosecute personal use amounts of weed. But they pretty much always have; they don't prosecute simple possession of personal use amounts of any narcotic (they may occasionally use the charge to resolve a case, but that's different). Does that mean they shouldn't be able to ask prospective prosecutors about using coke or meth or heroin? The feds *do* still prosecute certain kinds of mj production/distribution activities, which is where their interest lies and always has. The difference is that states are now legalizing and sure, it sucks to get stuck in the middle of that, I guess, but it doesn't really have anything to do with whether the feds prosecute personal use of weed, because they never did, even though they've been asking about it in background checks all this time.

Anyway, the duty to follow the law even though it's not enforced (as to personal use) comes from the fact that this is what the feds want their prosecutors to do. It doesn't have anything to do with working for the executive branch vs. legislative (like what?).

[Anonymous User]

OP here (started this thread about post-law school drug use and also with the significant other who smokes weed a few times a week). I obviously wish I had the foresight to just not have used drugs during law school/during my bar trip, just like I wish I had the foresight to have interned for or been a paralegal for the USAO/DOJ among other things, but here we are -- just want to say I appreciate all the responses. It looks like at most, it reflects poor judgment but isn't dispositive (and probably to a certain extent depends on the predilections of each USA).

OP, I'm sorry we've gone and ranted all over your thread. FWIW, I know it's facile to say "wait 7 years," but it is always an option to wait - if not 7 full years, at least a few years so you have a little more distance. And I do think attitudes about mj use in background checks will continue to change/it will become less of a deal.

(I do think a lot of the feds' commitment to weed being illegal is precisely because they don't really care about personal use - what they prosecute is manufacture and distribution because of the dangers those things pose, both in terms of lack of ability to regulate the product, and the collateral criminal activities like money laundering. Legalizing the drug itself wouldn't make those kinds of issues go away, but it would take them out of the criminal realm and require a lot of reconfiguring to address/resolve. Obviously could be done, but it's complicated. I mean, it's not that there aren't still boneheads who just think WEED BAD, and more older people feel this way, and older people tend to have more political power. But I don't think it's *only* that. And I do think it's going to continue to change. End of pontificating.)

[Anonymous User]

How disqualifying is cocaine usage in undergrad?

Should I just write off AUSA as an exit option forever?

[Anonymous User]

How disqualifying is cocaine usage in undergrad?

Should I just write off AUSA as an exit option forever?

No, it's not going to disqualify you forever.

First, like with weed, it still depends how frequently you used and for how long, and how long ago that was, where occasional use/experimentation is different from a regular habit and the more time since it happened, the better. Not saying that cocaine isn't tougher than weed - it doubtless is - but I think there's also an understanding of cocaine as a party drug in a way that there isn't for meth and heroin/fentanyl.

Second, I think there's a bit of a conceptual break between UG and LS - not strictly saying that what happens in UG stays in UG, but it's easier to justify UG activity than law school activity.

But most importantly, the AUSA background check only asks for drug use in the last 7 years. Given that most people aren't applying for AUSA jobs until like 3-5 years into practice (after clerking), especially depending when in undergrad you last used or if you didn't go K-JD, it wouldn't be that hard to wait to apply until your use drops off that timeline, which would honestly probably be safest.

[Anonymous User]

I mean, do you think anyone who illegally downloaded a song in college should also be disqualified from being a prosecutor?

The "college" context is irrelevant given that timing etc. are considered. If your question is whether ongoing illegal downloading should be able to be disqualifying, the answer is obviously yes. It seems uncontroversial that government employees should abide by the laws of said government.

[Anonymous User]

OP here (started this thread about post-law school drug use and also with the significant other who smokes weed a few times a week). I obviously wish I had the foresight to just not have used drugs during law school/during my bar trip, just like I wish I had the foresight to have interned for or been a paralegal for the USAO/DOJ among other things, but here we are -- just want to say I appreciate all the responses. It looks like at most, it reflects poor judgment but isn't dispositive (and probably to a certain extent depends on the predilections of each USA).

OP, I completely understand where you are coming from. I, like you, had some usage in law school but had no idea I would be a competitive enough candidate to work at DOJ. It never crossed my mind that I would get one of these jobs. From my experience, they were more than willing to work with me about casual marijuana use that spanned college and law school. I really regret the use, but not all of us have wanted to be prosecutors for our entire life. I think what another poster has said is correct - it’s about context, recency, and attitude. Lying is by far a bigger issue and in my opinion, reflects way more on your ability to be a prosecutor than partaking in MJ. I would not wait 7 years as suggested. Yes it’s a pain to have to disclose every use ever, but people are reasonable and like to give a candidate they have already selected the benefit of the doubt. My advice is to be 100% candid, express sincere regret, and get an ethics opinion from OARM to ease your concerns if you already have a job offer in hand. Best of luck! You are not undeserving of these jobs because of a lapse in judgment.

[Anonymous User]

Honestly, at this point, I don’t even think it’s really poor judgment, certainly not if you’re in a state that’s legalized recreational use. I’m one of the posters above who’s argued that there is *some* logic to the feds asking about it, but I don’t think that necessarily means anyone who’s smoked shows bad judgment. I mean, sure, if you were like actively applying to AUSA gigs at the time or something, but people absolutely change their minds about jobs (I went to law school determined not to do criminal law and now I’m a criminal AUSA. Didn’t really get on that path till after my first clerkship. I’m just lucky that I didn’t have anything to report, but it certainly wasn’t because I was trying to fly straight to apply for AUSA jobs).

And I said you can always wait the 7 years - to be clear, I don’t think you have to, just wanted to note that it is an option if the whole issue is stressing you out too much.

[Anonymous User]

Seems similar to the question that they ask about whether you paid someone who worked for you (babysitter, nanny, whatever) legally (reported it, paid taxes, etc.) The threshold for when pay has to be reported is pretty low (I think it's 2k a year but could be wrong). Most people don't pay such employees on the books, and many of the employees prefer it that way. And people are rarely prosecuted for tax avoidance solely on the basis of not paying taxes on their nanny, but they ask about it and its disqualifying if you do it, so if you think you might want to work for the government, you make sure to do it the legal way, even though it is more difficult to find someone who will work on the books and it is more expensive. If the line is we don't care about laws we rarely enforce, that goes beyond drug use.

[Anonymous User]

Seems similar to the question that they ask about whether you paid someone who worked for you (babysitter, nanny, whatever) legally (reported it, paid taxes, etc.) The threshold for when pay has to be reported is pretty low (I think it's 2k a year but could be wrong). Most people don't pay such employees on the books, and many of the employees prefer it that way. And people are rarely prosecuted for tax avoidance solely on the basis of not paying taxes on their nanny, but they ask about it and its disqualifying if you do it, so if you think you might want to work for the government, you make sure to do it the legal way, even though it is more difficult to find someone who will work on the books and it is more expensive. If the line is we don't care about laws we rarely enforce, that goes beyond drug use.

I’m actually going to argue that this is different because it’s not only illegal, but you’re defrauding the federal government in the process because taxes aren’t being paid. Seems to me that has more bearing on fitness to be a prosecutor than MJ use.

[Anonymous User]

Seems similar to the question that they ask about whether you paid someone who worked for you (babysitter, nanny, whatever) legally (reported it, paid taxes, etc.) The threshold for when pay has to be reported is pretty low (I think it's 2k a year but could be wrong). Most people don't pay such employees on the books, and many of the employees prefer it that way. And people are rarely prosecuted for tax avoidance solely on the basis of not paying taxes on their nanny, but they ask about it and its disqualifying if you do it, so if you think you might want to work for the government, you make sure to do it the legal way, even though it is more difficult to find someone who will work on the books and it is more expensive. If the line is we don't care about laws we rarely enforce, that goes beyond drug use.

I’m actually going to argue that this is different because it’s not only illegal, but you’re defrauding the federal government in the process because taxes aren’t being paid. Seems to me that has more bearing on fitness to be a prosecutor than MJ use.

Good point, but it's also really easy for people to violate that law without knowing. Pay a college student to pick your kid up from school and sit with them for a couple hours and, if the limit is $2000, you are quickly over the limit and committing tax fraud perhaps without even realizing it. Not excusing it because of course it's everyone's responsibility to know what their legal obligations are, but it's much easier for a good faith person to break that law than to say they didn't realize doing drugs was a crime.

[Anonymous User]

How disqualifying is cocaine usage in undergrad?

Should I just write off AUSA as an exit option forever?

as others have said, depends on the frequency of use, the context, and your attitude towards it. FWIW, I've gone through an abbreviated version of the OARM suitability determination process for a DOJ internship and disclosed both some experimental cocaine use in undergrad and some occasional marijuana use. the investigator definitely pushed me on it (and I had to sign about ten different forms averring that I would never touch drugs again), but it wasn't an automatic DQ. I think it helped that I had taken some time off between undergrad and law school, which made the use about four or five years before the internship; it'll be less of an issue for you the longer you wait to apply.

[Anonymous User]

OP here (started this thread about post-law school drug use and also with the significant other who smokes weed a few times a week). I obviously wish I had the foresight to just not have used drugs during law school/during my bar trip, just like I wish I had the foresight to have interned for or been a paralegal for the USAO/DOJ among other things, but here we are -- just want to say I appreciate all the responses. It looks like at most, it reflects poor judgment but isn't dispositive (and probably to a certain extent depends on the predilections of each USA).

Mind letting us know what you ended up doing, OP?

[Anonymous User]

Dumb question. I don't do drugs, but I live in a state where weed is legal and thus at parties and shit someone is inevitably doing weed. In these situations am I expected to be like "nope I'm leaving" or is just being present but not partaking ok?

[Anonymous User]

If you see someone doing weed at a party you should obviously call it in

[Anonymous User]

Dumb question. I don't do drugs, but I live in a state where weed is legal and thus at parties and shit someone is inevitably doing weed. In these situations am I expected to be like "nope I'm leaving" or is just being present but not partaking ok?

I was told by an investigator that you are not expected to report it, but you are expected to leave. Maybe that's unreasonable -- I don't know your friend group and how possible/impossible it is to be at parties where there aren't drugs, but it is at least what I was told.

[Anonymous User]

OP here (started this thread about post-law school drug use and also with the significant other who smokes weed a few times a week). I obviously wish I had the foresight to just not have used drugs during law school/during my bar trip, just like I wish I had the foresight to have interned for or been a paralegal for the USAO/DOJ among other things, but here we are -- just want to say I appreciate all the responses. It looks like at most, it reflects poor judgment but isn't dispositive (and probably to a certain extent depends on the predilections of each USA).

Mind letting us know what you ended up doing, OP?

This is OP. I ended up accepting an AUSA offer and am just awaiting the results of the background check. Thanks again for all of the advice -- hopefully this is a helpful data point for future applicants!

[Anonymous User]

Chiming in as a relatively new AUSA to offer some info from my experience that will hopefully help someone:

I used marijuana on a few occasions one random year of my life. Weirdly, I didn't touch it in college or law school. Instead, and stupidly, I decided to pass the bar, become a lawyer, and only then smoke a joint here and there one year. Then, I stopped and never did it ever again. All of this was 10+ years ago.

The national security review conducted by the FBI did not care about this marijuana use at all. They have a limited time scope and they stick to that time scope. So, if you're in my category of isolated and long-past marijuana use, security clearance will not be your issue. What WILL be your issue is the separate review undertaken by the OARM (Office of Attorney Recruitment and Management) in Washington DC. The OARM currently has every potential AUSA fill out a form known as the DOJ-54 (publicly accessible link to the current version here: https://www.justice.gov/file/261/download.

As you'll learn from the clearance process, this is an "Ever Question." Some questions are limited by time scope. Other questions are "ever" questions. The DOJ-54 asks the Ever Question of whether you have used any drugs after being sworn in to the bar. I had to answer yes and suffer a bit of heartburn.

The good news: after the heartburn, I was approved. The OARM did have me answer additional questions. They wanted to know, for example, whether state law might have given me a mitigating excuse: was it legal under state law when I did it? But nope, at the time, it was illegal under state law too. I basically fell on my sword and confessed that I had no excuses and no mitigation for this poor choice I had made a long time ago. The OARM responded by having me fill out an attestation about drug use, and I was approved.

[Anonymous User]

Chiming in as a relatively new AUSA to offer some info from my experience that will hopefully help someone:

I used marijuana on a few occasions one random year of my life. Weirdly, I didn't touch it in college or law school. Instead, and stupidly, I decided to pass the bar, become a lawyer, and only then smoke a joint here and there one year. Then, I stopped and never did it ever again. All of this was 10+ years ago.

The national security review conducted by the FBI did not care about this marijuana use at all. They have a limited time scope and they stick to that time scope. So, if you're in my category of isolated and long-past marijuana use, security clearance will not be your issue. What WILL be your issue is the separate review undertaken by the OARM (Office of Attorney Recruitment and Management) in Washington DC. The OARM currently has every potential AUSA fill out a form known as the DOJ-54 (publicly accessible link to the current version here: https://www.justice.gov/file/261/download.

As you'll learn from the clearance process, this is an "Ever Question." Some questions are limited by time scope. Other questions are "ever" questions. The DOJ-54 asks the Ever Question of whether you have used any drugs after being sworn in to the bar. I had to answer yes and suffer a bit of heartburn.

The good news: after the heartburn, I was approved. The OARM did have me answer additional questions. They wanted to know, for example, whether state law might have given me a mitigating excuse: was it legal under state law when I did it? But nope, at the time, it was illegal under state law too. I basically fell on my sword and confessed that I had no excuses and no mitigation for this poor choice I had made a long time ago. The OARM responded by having me fill out an attestation about drug use, and I was approved.

This is a great explanation and lines up with my experience as well. As an additional data point, my usage was more recent than this commenter, but happened prior to passing the bar exam. The FBI investigator was not concerned at all with my weed usage (though I never was a habitual smoker), but OARM had some additional questions. Once you receive an offer, you can contact OARM and explain your situation and they will give you an “opinion” on whether your actions would result in a denial of suitability.

[Anonymous User]

Does the local USAO weigh in on this issue at all when it arises (whether to find suitability)? Or is it strictly up to OARM? If the latter, is the local USAO looped in on the specific issue, etc.?

[Anonymous User]

Does the local USAO weigh in on this issue at all when it arises (whether to find suitability)? Or is it strictly up to OARM? If the latter, is the local USAO looped in on the specific issue, etc.?

I'm the anon "Chiming in" poster and can answer this with personal experience. The local USAO had no idea whatsoever that I had any drug history, unless the higher levels did and didn't bother talking to me about it. To my perception, solely the OARM addressed, questioned, and adjudicated the issue with me, and did not filter it down to my peer or supervisor levels. I know this for a fact for reasons I can't really explain without doxxing myself, but it is a fact.

Keep in mind: I can't certify that the OARM kept it a secret. It may be that the OARM mentioned it to the U.S. Attorney individually, and/or HR, and the USA was just too busy to care. But the rest of my supervisory folks had no idea about this. (I stopped giving a shit so I just told them at one point, because I thought it was going to come up again on a particular matter I was asked to handle. Now everyone around me knows I am the resident AUSA pothead of our floor.)

[Anonymous User]

Are federally legal delta 8/9 products fine? The forms ask about illegal drug use from what I can tell, so if it falls in the 2018 bill loophole I assume that’s okay (if the state of residence has also legalized)? I have heard that if you test positive no explanation is sufficient but I am strictly referring to the paperwork.

[Anonymous User]

I am not a narcotics prosecutor or expert. My "lay" understanding is that the 9th Circuit has held that Delta 8 is, hypertechnically, not an illegal narcotic. AK Futures LLC v. Boyd St. Distro, LLC, 35 F.4th 682 (9th Cir. 2022). I don't know if the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 10th, 11th, and D.C. Circuits have ruled the same way. I also don't know what state you consumed in, and whether that would even make a difference. I mean, if you consumed in a 9th Circuit state prior to the issuance of that ruling, you probably consumed it illegally.