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Biden should order background checks of Trump's Cabinet picks
https://www.msnbc.com/opinion/msnbc-opinion/biden-trump-cabinet-picks-fbi-background-checks-rcna180698We 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.
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