AUSA drug use question Forum

[Anonymous User]

Original asker on D8 stuff. Not legal advice. Here’s my opinion after thinking about it. It’s the 2018 farm bill makes it legal, not the 9th cir ruling interpreting the text—so it seems wrong to say previous uses are probably illegal based on the timing wrt the opinion. Congress said what it said and an appellate court (with a 3d cir judge actually writing the opinion) clarified “yeah clearly this means what it says.”

Ftr I haven’t used but I am potentially interested; not wanting to ruin SF-86 stuff though.

[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.)

Thanks - that is helpful. Do you have a sense of what the minimum acceptable "gap in time" is right now for "state law legal" marijuana (assume 1x experimental use)?

[Anonymous User]

Original asker on D8 stuff. Not legal advice. Here’s my opinion after thinking about it. It’s the 2018 farm bill makes it legal, not the 9th cir ruling interpreting the text—so it seems wrong to say previous uses are probably illegal based on the timing wrt the opinion. Congress said what it said and an appellate court (with a 3d cir judge actually writing the opinion) clarified “yeah clearly this means what it says.”

Ftr I haven’t used but I am potentially interested; not wanting to ruin SF-86 stuff though.

The DEA, and more importantly the DOJ, definitely don't agree with you. The DOJ obviously argued to the 9th Circuit that Delta 8 is illegal, which the 9th Circuit did not say was untrue until the 2022 ruling. I suspect the DOJ does not have the warm and fuzzies about that ruling. So, relying on that ruling to potentially commit perjury on a federal form being supplied to the DOJ seems like a very bad way to start your DOJ career.

And remember, you are subject at all times as an AUSA to having random acquaintances from your past being questioned by the FBI about things they might know about you, and to being randomly polygraphed. Do not enter this career with a stupid thing like this dangling around your neck. It's not worth it. Just disclose and get it over with.

[Anonymous User]

Thanks - that is helpful. Do you have a sense of what the minimum acceptable "gap in time" is right now for "state law legal" marijuana (assume 1x experimental use)?

Well, unfortunately, it looks like you have a sample size of exactly one anonymous Internet comment from which you can only guess what that past-gap-time is. I'm the Chiming In guy again. My gap was pretty long but I'd rather not be too specific. Let me put it this way:

• 10 years ago: You're probably good.
• 5 years ago: Could get iffy, prepare to sweat, but if it was an isolated use and zero evidence of habitual use or future recurrence risk, you should make it.
• 2 years ago: I'm not betting my lunch money on ya, but give it a shot. Who knows what their policy is right now.
• Within the last 12 months, I would be shocked if they approved. But I have no evidence to base that on.

If you are within one of those higher risk categories, as disappointing and crushing as I know this is to hear, you should probably prepare a Plan B for that legal career. I know that feeling because for a few days I lived with it.

[Anonymous User]

Original asker on D8 stuff. Not legal advice. Here’s my opinion after thinking about it. It’s the 2018 farm bill makes it legal, not the 9th cir ruling interpreting the text—so it seems wrong to say previous uses are probably illegal based on the timing wrt the opinion. Congress said what it said and an appellate court (with a 3d cir judge actually writing the opinion) clarified “yeah clearly this means what it says.”

Ftr I haven’t used but I am potentially interested; not wanting to ruin SF-86 stuff though.

The DEA, and more importantly the DOJ, definitely don't agree with you. The DOJ obviously argued to the 9th Circuit that Delta 8 is illegal, which the 9th Circuit did not say was untrue until the 2022 ruling. I suspect the DOJ does not have the warm and fuzzies about that ruling. So, relying on that ruling to potentially commit perjury on a federal form being supplied to the DOJ seems like a very bad way to start your DOJ career.

And remember, you are subject at all times as an AUSA to having random acquaintances from your past being questioned by the FBI about things they might know about you, and to being randomly polygraphed. Do not enter this career with a stupid thing like this dangling around your neck. It's not worth it. Just disclose and get it over with.

Minor nitpick: AUSAs don’t get polygraphed. (Also pretty sure your acquaintances only get contacted when you’re going through the initial background check process, and then when it’s renewed, and you will be informed when both of those are happening. So it’s not something you’re subject to randomly at any time throughout your employment, although it is true that, when the check/renewal is going on, they could talk to almost anyone.)

More substantively: the DOJ may not approve of use of delta-8 (no idea, I’ve never heard it come up), but if a court says that it’s legal, they’re going to abide by that. So while they could easily choose to disqualify someone for using D8 (again, no idea if they would), that would be different from treating someone who says “I haven’t used illegal drugs” as a liar if they’ve used D8 (and D8 is legal in their state). That’s not me saying the D8 OP absolutely shouldn’t (or should) disclose, but I don’t think it’s quite as straightforward as “DOJ argued against it so saying it’s not illegal is lying.” DOJ could decide to ding for D8 use but they can’t label it illegal if it’s not.

I don’t know enough about the farm bill and case law around it to say that it’s clearly established as legal, though. I tend to agree that use after the farm bill before the opinion saying it’s legal wouldn’t count as illegal, for the reason the OP gave. Quick googling suggests the default assumption is that D8 is federally legal due to the farm bill but states can ban it, which seems more clear cut than mj, but I get being cautious about it.

My quick googling also suggests that D8 is chemically pretty much identical to D9 (the stuff from mj rather than from hemp), so I do tend to agree that testing positive would be more of an issue because you wouldn’t be able to distinguish the substances easily.

But this is not legal advice of course.

[Anonymous User]

Original D8 person.

Did the DOJ even argue that case? It was an IP issue between two private litigants, unless the US intervened.

I know the DEA took a different opinion, but they aren’t Congress or the courts.

And I don’t think it’s perjury when the form asked have you ever used “illegally.” If it’s not contrary to law it’s not illegal. Whether to be cautious and avoid or disclose as a prophylaxis to any issues is of course a different question. Not legal advice.

[Anonymous User]

Anon above - you're right, DOJ wasn't involved at all, unless they've tried to intervene in the cert petition or something. I just went off the previous post. DEA is part of DOJ, of course, and there were some lawsuits against DEA rules about D8/hemp that the DEA won, but the court concluded in the DEA suits that the DEA rules didn't say anything different than the farm bill, so not sure any of this is a clear statement that DEA/DOJ think that D8 is illegal.

[Anonymous User]

"AUSAs don’t get polygraphed."

Sure they do. If you are sent up for a Top Secret clearance for a work-related reason, you will likely be polygraphed. In addition, you can be polygraphed if someone important becomes suspicious that you lied about something in your background. Which is the reason why you should not lie about drug use as a way to get the job.

"And I don’t think it’s perjury when the form asked have you ever used “illegally.”"

They don't have to prove a perjury case against you. The OARM is simply making suitability decisions. If the OARM feels like you're being a smart-ass, even if they fall short of being able to prove that you lied, your conditional offer will be yanked and it's back to the private sector for you.

[Anonymous User]

Original poster again. Fair enough re: suitability, I had mentioned perjury because another poster had.

Though again, I disagree it would be “lying” when the form asks about “illegal” use. note: I’m not saying it’s objectively a good idea not to disclose. But if they asked about ALL ingestion of THC for example, that would be a different issue than a form asking for “illegal drug use.” And I don’t think that’s a matter of opinion that’s just what the forms say and what the law is, currently.

I’m not even sure I want to work for DOJ I was just curious. Thanks for the interesting discussion though.

[Anonymous User]

"AUSAs don’t get polygraphed."

Sure they do. If you are sent up for a Top Secret clearance for a work-related reason, you will likely be polygraphed. In addition, you can be polygraphed if someone important becomes suspicious that you lied about something in your background. Which is the reason why you should not lie about drug use as a way to get the job.

"And I don’t think it’s perjury when the form asked have you ever used “illegally.”"

They don't have to prove a perjury case against you. The OARM is simply making suitability decisions. If the OARM feels like you're being a smart-ass, even if they fall short of being able to prove that you lied, your conditional offer will be yanked and it's back to the private sector for you.

I’m an AUSA. Okay, I’m sure it’s possible to polygraph AUSAs, but it’s definitely not standard. Most positions won’t require Top Secret clearance and I don’t know anyone who’s been polygraphed (for DOJ. I do for other agencies). But the OP isn’t proposing lying when asked if they used D8 - only asking about whether it falls under the category of illegal drug use. Not sure they’d fail a polygraph if asked “do you believe you’ve used drugs illegally” (though I don’t think that would be a good polygraph question).

Re: OARM, I agree that they’re making suitability determinations. That’s why I said they could ding you for using D8 if they want. I don’t think they can substitute the belief that D8 should be illegal and then use that to say you lied when you said you never used illegal drugs. Pretty sure the standard is not whether you’re being a smart ass, and not sure someone would even be acting like a smart ass in this situation. There’s nothing so far that proves D8 is illegal federally so if it’s not banned in the OP’s state I don’t think OARM can ding the OP for answering no to use of illegal drugs.

OARM could of course ask directly about use of hemp products or ambiguously illegal substances if they wanted, but they don’t, yet, so far as I know.

And practically speaking, it’s probably best for the OP to consult with someone who specializes in this kind of stuff - there’s got to be someone out there who does. But I think the D8 stuff is ambiguous enough for the same reason that there are questions about what the OP should do, there are questions about what OARM should do. Again, I mean specifically with regard to the question about using drugs and whether a “no” answer is a lie - not about the use itself, if that gets asked about directly.

[Anonymous User]

It's unlikely that anyone playing games with Delta-8 would be in a dilemma here, because the OARM should in theory only be interested in past drug use that was at least 7 years old. The FBI gets to interrogate you about all drug use within the last 7 years, so if you want to play Delta-8 games with them about recent use, have fun.

OARM is the entity that asks an "ever" question about drug use. If you didn't use in the last 7 years, but you did use 20 years ago, they're going to judge you according to how transparent you are being and how frequent the past drug use was. I doubt you can hang your hat on a Delta-8 hook in that scenario.

[Anonymous User]

And practically speaking, it’s probably best for the OP to consult with someone who specializes in this kind of stuff - there’s got to be someone out there who does.

There actually are a few national security clearance lawyers out there who know this stuff in and out and deal with it all day long. Set that ego aside and get another lawyer's counsel if you are in this situation and worried about it. These are major career decisions and a few dollars for an advice-and-counsel session is a perfectly sane investment. Two lawyers I've heard of before who do this (I have zero connections to these people; I've just seen their names associated with this interesting practice area):

https://markzaid.com/moss/

https://www.hsclaw.com/attorneys/troy-l-nussbaum/

[Anonymous User]

Thanks - that is helpful. Do you have a sense of what the minimum acceptable "gap in time" is right now for "state law legal" marijuana (assume 1x experimental use)?

Well, unfortunately, it looks like you have a sample size of exactly one anonymous Internet comment from which you can only guess what that past-gap-time is. I'm the Chiming In guy again. My gap was pretty long but I'd rather not be too specific. Let me put it this way:

• 10 years ago: You're probably good.
• 5 years ago: Could get iffy, prepare to sweat, but if it was an isolated use and zero evidence of habitual use or future recurrence risk, you should make it.
• 2 years ago: I'm not betting my lunch money on ya, but give it a shot. Who knows what their policy is right now.
• Within the last 12 months, I would be shocked if they approved. But I have no evidence to base that on.

If you are within one of those higher risk categories, as disappointing and crushing as I know this is to hear, you should probably prepare a Plan B for that legal career. I know that feeling because for a few days I lived with it.

Chiming in because I was in the less than 2 years ago category. The use was before being sworn in, but I ultimately was found suitable by OARM. It wasn’t even legal in my state. I scoured these forums after receiving an offer and based only on my personal experience, some of these opinions were probably relevant five years ago. Now, it seems they’re a little more relaxed (only about marijuana though).

[Anonymous User]

It's unlikely that anyone playing games with Delta-8 would be in a dilemma here, because the OARM should in theory only be interested in past drug use that was at least 7 years old. The FBI gets to interrogate you about all drug use within the last 7 years, so if you want to play Delta-8 games with them about recent use, have fun.

OARM is the entity that asks an "ever" question about drug use. If you didn't use in the last 7 years, but you did use 20 years ago, they're going to judge you according to how transparent you are being and how frequent the past drug use was. I doubt you can hang your hat on a Delta-8 hook in that scenario.

Another reminder to calm any nerves out there (since you can't smoke weed anymore ha ha): The OARM questionnaire only wants to know about illegal drug use after you became a licensed attorney. Yes it's an "ever" question but it's an "ever" question capped by your bar admission date. If you smoking joints in college or even law school, you're off the hook completely.

[Anonymous User]

OP again.

One of you anons is kind of being a hardo with the framing if the issue. The person that’s an actual AUSA is being reasonable; I would hope the other dude is actually a DOJ employee to be so nit-picky ab this.

It’s not a moral question about not disclosing when you don’t agree with the law like previous TLS posters that smoke weed but feel it’s an unjust law; it’s actually a position more supported by law than the contrary. On the one hand you have the text of a statute that went through bicameralism and presentment, as well as a 9th Cir opinion. On the other hand, DEA previously stated they disagree with the prevalent interpretation of the statute (rest in piss Chevron).


In my opinion, the government isn’t owed additional information past what they ask for; and it’s not a material omission when they frame the question specifically in terms of legality. At that point might as well disclose all sorts of random stuff like not paying taxes on your $200 fantasy league winnings or that one time you drove after 3 drinks and probably should have waited or eaten something first.

Personally, I don’t see how answering a question according to what it asks and what the law actually says is playing games. Of course none of this is legal advice and if I found myself applying to DOJ after choosing to legally partake, I would speak to a qualified attorney.


Thanks for the attorney recs.

[Anonymous User]

It's unlikely that anyone playing games with Delta-8 would be in a dilemma here, because the OARM should in theory only be interested in past drug use that was at least 7 years old. The FBI gets to interrogate you about all drug use within the last 7 years, so if you want to play Delta-8 games with them about recent use, have fun.

OARM is the entity that asks an "ever" question about drug use. If you didn't use in the last 7 years, but you did use 20 years ago, they're going to judge you according to how transparent you are being and how frequent the past drug use was. I doubt you can hang your hat on a Delta-8 hook in that scenario.

Another reminder to calm any nerves out there (since you can't smoke weed anymore ha ha): The OARM questionnaire only wants to know about illegal drug use after you became a licensed attorney. Yes it's an "ever" question but it's an "ever" question capped by your bar admission date. If you smoking joints in college or even law school, you're off the hook completely.

This isn’t entirely true. Yes, this is the question on the first form you are asked. But the SF86 asks “in the past seven years.” Once you disclose this usage, you’re going to get an updated form from OARM where you have to list all drug usage “ever,” which includes usage before becoming a licensed attorney.

[Anonymous User]

OP again.

One of you anons is kind of being a hardo with the framing if the issue. The person that’s an actual AUSA is being reasonable; I would hope the other dude is actually a DOJ employee to be so nit-picky ab this.

It’s not a moral question about not disclosing when you don’t agree with the law like previous TLS posters that smoke weed but feel it’s an unjust law; it’s actually a position more supported by law than the contrary. On the one hand you have the text of a statute that went through bicameralism and presentment, as well as a 9th Cir opinion. On the other hand, DEA previously stated they disagree with the prevalent interpretation of the statute (rest in piss Chevron).


In my opinion, the government isn’t owed additional information past what they ask for; and it’s not a material omission when they frame the question specifically in terms of legality. At that point might as well disclose all sorts of random stuff like not paying taxes on your $200 fantasy league winnings or that one time you drove after 3 drinks and probably should have waited or eaten something first.

Personally, I don’t see how answering a question according to what it asks and what the law actually says is playing games. Of course none of this is legal advice and if I found myself applying to DOJ after choosing to legally partake, I would speak to a qualified attorney.


Thanks for the attorney recs.

I think the issue is more that it is an argument that you will never win because you won't be given the chance to make it. When I was applying for security clearance/jobs, people that were dinged, especially on SF-86 grounds, were never told why - you just get a "no." Not saying this is your situation -- maybe your use is purely in the past -- but it should be obvious that if the job is important to you, you should not continue to use, even if you think you would "win" the argument.

[Anonymous User]

Fair enough

[Anonymous User]

I don’t see how answering a question according to what it asks and what the law actually says is playing games.

AUSA here. The OARM asks you if have ever ingested drugs illegally after becoming a licensed member of the bar. If you used Delta-8, and Delta-8 was not legal until the 2018 farm bill, you used it illegally until 2018.

[Anonymous User]

I don’t see how answering a question according to what it asks and what the law actually says is playing games.

AUSA here. The OARM asks you if have ever ingested drugs illegally after becoming a licensed member of the bar. If you used Delta-8, and Delta-8 was not legal until the 2018 farm bill, you used it illegally until 2018.

The person talking about D8 hasn't said anything about using it before the 2018 bill. They seem to be considering using it in the future. I doubt it was that widely available in the US before the 2018 bill (though that may just be my own out-of-touch-ness).

[Anonymous User]

I don’t see how answering a question according to what it asks and what the law actually says is playing games.

AUSA here. The OARM asks you if have ever ingested drugs illegally after becoming a licensed member of the bar. If you used Delta-8, and Delta-8 was not legal until the 2018 farm bill, you used it illegally until 2018.

I took that as a given

[Anonymous User]

It's unlikely that anyone playing games with Delta-8 would be in a dilemma here, because the OARM should in theory only be interested in past drug use that was at least 7 years old. The FBI gets to interrogate you about all drug use within the last 7 years, so if you want to play Delta-8 games with them about recent use, have fun.

OARM is the entity that asks an "ever" question about drug use. If you didn't use in the last 7 years, but you did use 20 years ago, they're going to judge you according to how transparent you are being and how frequent the past drug use was. I doubt you can hang your hat on a Delta-8 hook in that scenario.

Another reminder to calm any nerves out there (since you can't smoke weed anymore ha ha): The OARM questionnaire only wants to know about illegal drug use after you became a licensed attorney. Yes it's an "ever" question but it's an "ever" question capped by your bar admission date. If you smoking joints in college or even law school, you're off the hook completely.

This isn’t entirely true. Yes, this is the question on the first form you are asked. But the SF86 asks “in the past seven years.” Once you disclose this usage, you’re going to get an updated form from OARM where you have to list all drug usage “ever,” which includes usage before becoming a licensed attorney.

Based on prior posts here, this isn't quite accurate. All offices will ask (in addition to SF86) whether you've done drugs after being admitted to the bar. But not all offices will ask (if you answer "yes" on SF86) to list all drug usage "ever"; some offices have asked that, others have not.