President-elect Donald Trump and his transition team have yet to sign the customary documents allowing the Federal Bureau of Investigation to conduct background checks on his nominees for important government posts, and it’s unclear whether those nominees will receive FBI background checks at all.
The background checks flag any serious concerns about the nominees — not just criminal activity but financial issues or relationships that could compromise their ability to carry out their jobs. They are also the basis for security clearances necessary for high-level national security officials tasked with handling sensitive information.
The checks are meant to reveal whether there’s reason to believe these potential officials might misuse the power of their offices or if they have any vulnerabilities that might be exploited, either by US citizens or foreign adversaries.
It’s possible that the FBI will be asked to do background checks next year. According to a report in the Guardian, Trump will request the background checks once his own officials are posted at the Department of Justice, which oversees the FBI. The transition team is reportedly relying on internal vetting as well as outside law firms and unspecified allied groups to conduct the background checks, but the FBI is better equipped and has the training and capacity necessary to conduct these investigations.
An FBI background check for political appointees is only customary; there’s no legal backing for it. No other branch of government can compel the nominees to undergo them. Trump himself has been skeptical of the FBI, so it’s not that surprising that he’s eschewed the background checks. But they do serve several important purposes.
Here’s what you need to know about the FBI background checks.
What’s the standard background check process?
The FBI background check process is straightforward, if arduous.
First, the incoming administration signs a memorandum of understanding with the Department of Justice outlining what kinds of information they are looking for about their nominees and what resources the DOJ can provide to help uncover that information. Nominees who will be working in national security have to fill out a special form (the same one the Department of Defense uses in evaluating staff for security clearances).
The FBI can question the nominee and their contacts if necessary but cannot collect documents or compel evidence. Cooperation is voluntary, but as Llewelyn Engel, an attorney at the Washington, DC, firm Emery Will & Henry, told Vox, “From an interview perspective, if the FBI calls you to ask about somebody, you might be more forthcoming” than with a law firm or other private entity conducting investigations.
Once complete, the full background check then goes to the president-elect who, based on the findings, can either refer the nominee to the Senate or decide to withdraw the nomination. If the nomination is for a high-level position, like a Cabinet member or an ambassador, the investigations go to the appropriate Senate committee — for example, the Senate Armed Services Committee for a Defense secretary nominee.
“The Senate committee is in charge of looking at all this information, so they’ll get a big binder of all the material, and they can also do their own investigations as well,” Engel said. “They can always request that more information is collected about this individual.”
Again, the process isn’t mandated by law. The practice started when President Dwight Eisenhower chose to have his nominees subject to a background check and has continued since then.
Is Trump following the usual process?
Thus far, Trump has deviated from the usual process, although the incoming administration did sign other important transition agreements with the Biden White House on Tuesday.
The Biden administration told Politico that “progress has been made towards an agreement” between the Trump team and the DOJ, but how much progress remains unclear.
“The Trump-Vance transition lawyers continue to constructively engage with the Biden-Harris Administration lawyers regarding all agreements contemplated by the Presidential Transition Act,” Brian Hughes, a spokesperson for Trump’s transition team, told NPR. “We will update you once a decision is made.”
The Justice Department said in a statement that it is “prepared to deliver briefings to the transition team on our operations and responsibilities, and we stand ready to process requests for security clearances for those who will need access to national security information.”
Why isn’t Trump following the standard process?
No other president-elect has eschewed the FBI background check process “in recent memory,” Heath Brown, a professor of public policy at John Jay College of Criminal Justice, told Vox. And Trump hasn’t said why he hasn’t tasked the FBI with doing background checks.
And as previously noted, there’s no law requiring Trump to follow the normal process. Reps. Ted Lieu of California and Dan Beyer of Virginia introduced a bill in November to codify the practice in the law, but it hasn’t passed yet.
Instead of following the typical process, Trump’s transition team plans to have the FBI checks go forward only after he has taken office — that is, after he is in control of the agency and has his own appointees in place, the Guardian reported Wednesday. According to that report, Trump also plans to grant blanket security clearances, though it’s unclear whether or how the DOD will be involved in that process.
Without the FBI background checks, the various Senate committees can conduct their own investigations into nominees, according to Engel and Jennifer Selin, associate professor at the Arizona State University Sandra Day O’Connor College of Law. Those investigations may or may not become public.
Even without FBI investigations, potential red flags with nominees will sometimes emerge through reporting. The press resurfaced allegations of sexual misconduct on the part of former Attorney General nominee Matt Gaetz. And Defense Secretary nominee Pete Hegseth’s alleged sex crime also came to light through news stories. Both men have denied wrongdoing.
“The media is in some ways a good ally for the Senate because it’s not just the senators delving into and using their subpoena power and their background and connections with various agencies to get information and to conduct their own investigations,” Selin said.
The Senate will ideally begin confirmation hearings — with or without the FBI reports — before Inauguration Day on January 20, 2025.
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