We had fair warning. Last month, The New York Times reported Then-candidate Donald Trump’s advisers told him to ignore FBI background investigations for his high-profile candidate selections. Last week, CNN, citing “people close to transition planning,” reported that Trump does not intend to submit names of at least some of his Cabinet-level choices for oversight of the FBI. Whether you’re Republican, Democrat, or Independent, and whether you’re energized or enraged by Trump’s speech controversial choicesyou should be concerned about the possibility of a verification process that is actually no process at all.
Whether you’re energized or enraged by Trump’s choices, you should be concerned about the possibility of a vetting process that actually isn’t one.
The FBI has conducted investigations into White House candidates at least since the tenure of President Dwight Eisenhower. Despite this, there is no law that clearly requires presidents or presidents-elect to submit their nominees and appointments to the FBI for investigation. In 1953, Eisenhower published Executive Order (EO) 10450calling for investigations into future federal employees. However, the decrees does not have the full effect of a law and bind only the executive power. Worse still, Eisenhower’s executive order is open to interpretation. Consider Section 2: “The head of each department or agency of the government shall be responsible for establishing and maintaining within his or her department or agency an effective program to ensure that the employment and retention of any officer or employee civil service within the department or agency is clearly consistent with national security interests. There is a lot of room for maneuver there. Section 3 of this decree bed, “The appointment of every civil servant or employee in any department or agency of the Government shall be subject to investigation… but in no case shall the investigation include less than an audit by a national agency (including an audit of records of fingerprints from the Federal Office). investigation). » This means that Trump, who claims to be call on private companies to conduct background investigations, they could settle for a company that simply checks FBI fingerprint files. Yet while there was no warrant, the intent here was a government investigation involving the FBI.
Subsequent presidents, including Bill Clinton And Barack Obamarevised Eisenhower’s executive order to mitigate intrusive investigations into sexual orientation in granting security clearances, but still lacks a specific mandate for the FBI to investigate White House candidates. And again, a decree is not really a law. Obviously the intent of these executive orders has always been for a government agency, specifically the FBI, to conduct these investigations, but we have a new president thumbing his nose at the rules and intentions. Presidential Transition Act of 1963 directs the FBI to conduct such background checks “promptly” for “individuals the President-elect has identified for high-level national security positions.” But what if he never formally identifies and submits its choices to the Department of Justice and the FBI? In his last administrationTrump overrode security arbiters who denied clearances for his son-in-law, Jared Kushnerand many others, after FBI background checks sparked national security concerns. This time, he appears ready to bypass FBI vetting and potentially the Senate confirmation process by doing playtime meeting.
This leaves us with two relevant Memoranda of Understanding (MOUs) that should allow President Joe Biden and/or the United States Senate Judiciary Committee act quickly to preserve national security and Constitution the advice and consent powers given to our elected legislators.
This time, he appears willing to bypass FBI vetting and potentially the Senate confirmation process by making recess appointments.
First, Biden should rely on Existing MOU between the Justice Department and his office, as well as the Presidential Transition Act, to investigate people Trump says he wants to put in power. The MOU sets out procedures for requesting a background investigation of candidates “at the request of the President.” He is not called president-elect, but “president”. It’s you, Joe. As for the transition law, it reads as applying to persons “…whom the president-elect has identified” for high-level positions. Well, the president-elect has already publicly identified these people. And Biden should respond. What happens if a candidate refuses to cooperate, does not consent to an investigation, or does not complete any forms? The MOU offers a remedy for this: “The DOJ and the FBI may consider a request by the President for a name check or BI without the consent of the appointee if extraordinary circumstances warrant it. “I would say that with some of these nominees being appointed by Trump, and the fact that Trump may waive the FBI’s review of their files, we find ourselves in extraordinary circumstances.
The Senate Judiciary Committee has its own Relevant Memorandum of Understanding with the President’s Council. That document says the committee “shall have access” to FBI reports on nominees for attorney general, FBI director, or summaries of “all other DOJ nominees and non-judicial nominees.” The emphasis on all other And non-judicial. We know senators want details of the House Ethics Committee’s investigation into former Rep. Matt Gaetz, Trump’s pick for attorney general. An FBI background investigation would certainly include a request to review this report, as well as the now-closed DOJ criminal investigation into Gaetz. The Senate Judiciary Committee is expected to issue a bipartisan request now for an FBI background check on Trump’s picks. Regardless of party affiliation, if senators give up their power of advice and consent or confirm a nominee without knowing the risk he poses, then they are setting a precedent by never exercising their constitutional powers again.
You would be right to ask, “What’s the point?” After all, Trump is unlikely to read, much less act on, the derogatory information contained in the FBI reports. It would be a matter of forcing Trump’s hand. Drop the reports on his desk and let him move forward with candidates who are potentially deemed unqualified by the investigation, at risk of compromise, or even posing a threat to national security. Let Trump order White House security clearance adjudicators or hand-picked agency heads to grant security clearances to seemingly unqualified applicants. Let the Senate confirm the nominees after reading the details on the type of people who could run the DOJ or serve as director of national intelligence.
Don’t believe me. This is what the founding father Alexander Hamilton said on the advice and consent role of the Senate, and on the need for checks and balances against presidential appointees. “…the president would be “ashamed and afraid” of fielding candidates without merit, whose only qualifications would be (from) particular states, or be personally allied with the president, or “possess the insignificance and flexibility necessary to grant them obsequious honor.” instruments of his pleasure.
Biden should be neither ashamed nor afraid to fully investigate Trump’s choices, given signs that Trump may not. Through an executive order, he should require the FBI to conduct investigations into Trump’s choices and instruct the FBI to begin the process now. The US Senate should use its power to ask the FBI for the same thing.
The clock is ticking.