Biden should order background
checks of Trump’s Cabinet picks
The FBI has conducted background
investigations of White House nominees since at least the tenure of President
Dwight Eisenhower’s time in office.
Nov. 18, 2024, 4:29 PM CST
By Frank Figliuzzi, MSNBC Columnist
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.
Frank Figliuzzi is an
MSNBC columnist and Senior National Security and Intelligence Analyst for
NBC News and MSNBC. He was the assistant director for counterintelligence at
the FBI, where he served 25 years as a special agent and directed all espionage
investigations across the government. He is the author of "The FBI Way:
Inside the Bureau's Code of Excellence."
