We had fair warning. Last month, The New York Times reported that then-candidate Donald Trump’s advisers were telling him to skip FBI background investigations for his high-level selections for nominees. Last week, CNN, citing “people close to the transition planning,” reported that Trump doesn’t plan to submit the names of at least some of his Cabinet-level picks for FBI vetting. Whether you’re Republican, Democrat or independent, and regardless of whether you’re energized or enraged by Trump’s controversial picks, you should be concerned about the possibility of a vetting process that’s really no process at all.
Whether you’re energized or enraged by Trump’s picks, you should be concerned about the possibility of a vetting process that’s really no process at all.
The FBI has conducted background investigations of White House nominees since at least the tenure of President Dwight Eisenhower’s time in office. Even so, there’s no law clearly mandating presidents or presidents-elect to submit their nominees and appointments to the FBI for investigation. In 1953, Eisenhower issued Executive Order (EO) 10450, calling for investigations of prospective federal employees. Yet, executive orders don’t have the full effect of a law and are only binding on the executive branch. Worse, Eisenhower’s executive order is subject to interpretation. Consider Section 2, “The head of each department and agency of the Government shall be responsible for establishing and maintaining within his department or agency an effective program to ensure that the employment and retention in employment of any civilian officer or employee within the department or agency is clearly consistent with the interests of the national security.” There’s lots of wiggle room there.
Section 3 of that executive order reads, “The appointment of each civilian officer or employee in any department or agency of the Government shall be made subject to investigation … but in no event shall the investigation include less than a national agency check (including a check of the fingerprint files of the Federal Bureau of Investigation).” That means that Trump, who claims he’s using private firms to conduct background inquiries, might get by with having whatever firm that is simply checking FBI fingerprint files. Yet, despite there being no mandate, the intent here was a government inquiry involving the FBI.
Subsequent presidents, including Bill Clinton and Barack Obama, revised Eisenhower’s edict to mitigate intrusive inquiries into sexual orientation in the granting of security clearances, but still missing is a specific mandate for FBI investigation of White House nominees. And again, an executive order isn’t quite a law. Clearly, the intent in these executive orders has always been for a government agency, particularly the FBI, to conduct these inquiries, but we have an incoming president who thumbs his nose at rules and intentions.
The Presidential Transition Act of 1963 directs the FBI to conduct such background checks “expeditiously” for “individuals that the President-elect has identified for high level national security positions.” But what if he never formally identifies and submits his picks to the Department of Justice and the FBI? In his last administration, Trump overrode security adjudicators who denied clearances for his son-in-law, Jared Kushner, and many others, after FBI background checks resulted in national security concerns. This time, he appears poised to dispense with the FBI checks and potentially with the Senate confirmation process by making recess appointments.
That leaves us with two pertinent memorandums of understanding (MOU) which should enable President Joe Biden and/or the U.S. Senate Judiciary Committee to quickly do something to preserve national security and the Constitution’s advice, and consent powers conferred on our elected lawmakers.
This time, he appears poised to dispense with the FBI checks and potentially with the Senate confirmation process by making recess appointments.
First, Biden should rely upon the existing MOU between the Department of Justice and his office, as well as the Presidential Transition Act, to investigate the people Trump says he wants to put in office. The MOU sets out procedures for requesting background investigations of nominees “at the request of the president.” It doesn’t say the president-elect, it says “president.” That’s you, Joe. As for the transition act, it reads as applying to people “…the President-elect has identified” for high-level positions. Well, the president-elect has already publicly identified those people. And Biden should respond.
What happens if a nominee refuses to cooperate, won’t provide his consent to be investigated or won’t fill out any forms? The MOU has a remedy for that: “The DOJ and FBI may consider a request from the President for a name check or BI without the consent of the appointee if justified by extraordinary circumstances.” I’d say with some of these nominees named by Trump, and the fact that Trump may forego FBI vetting of them, we have extraordinary circumstances.
The Senate Judiciary Committee has its own pertinent MOU with the Counsel to the President. That document says the committee “shall have access to” the FBI reports on nominees for attorney general, FBI director or summaries for “all other DOJ nominees and non-judicial nominees.” Emphasis on all other and non-judicial. We know senators want the details of the House Ethics Committee inquiry into former Rep. Matt Gaetz, Trump’s pick for attorney general. An FBI background investigation would certainly include a request to review that report, as well as the DOJ criminal investigation, now closed, into Gaetz. The Senate Judiciary Committee should make a bipartisan request for an FBI background check of Trump’s picks now. Regardless of party affiliation, if senators relinquish their advice and consent authority or confirm a nominee without benefit of knowing the risk they pose, then they set a precedent for never again exercising their constitutional powers. You’d be right to ask, “What’s the point?” After all, Trump is unlikely to read, let alone act upon, any derogatory information developed in FBI reports. The point would be to force Trump’s hand. Drop the reports on his desk and let him go forward with nominees who potentially are either found through investigation to be unqualified, at risk of compromise, or even a national security threat. Let Trump order White House security clearance adjudicators or his hand-picked agency heads to grant security clearances to seemingly unqualified candidates. Let the Senate affirm nominees after they’ve read details about the kind of people who may lead the DOJ or serve as the director of national intelligence. Don’t take it from me. Here’s what Founding Father Alexander Hamilton said about the Senate’s advice and consent role, and the need for checks and balances against a president’s nominees. “…the president would be ‘ashamed and afraid’ to bring forward unmeritorious candidates, whose only qualifications would be [hailing] from particular states, or being personally allied to the president, or ‘possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.’” Biden should be neither ashamed nor afraid to thoroughly investigate Trump’s picks, given the signs that Trump may not. Through executive order, he should mandate that the FBI conduct background investigations on Trump’s picks and instruct the FBI to begin the process now. The U.S. Senate should use its power to request the same of the FBI. The clock is ticking.
