President-elect Donald Trump and his transition team have yet to sign formal documents authorizing the Federal Bureau of Investigation to conduct background checks on his nominees for key government positions, and it’s unclear whether those nominees will receive FBI background checks at all.
Background checks screen out any serious concerns about nominees — not just criminal activity but financial problems or relationships that might compromise their ability to perform the job. They are also the basis for security clearances required for high-level national security officials tasked with handling sensitive information.
The checks are meant to reveal whether there is reason to believe that these potential officials may abuse the power of their office or have any vulnerabilities that could be exploited by US citizens or foreign adversaries.
It is possible that the FBI will be asked to do background checks next year. According to a Guardian report, Trump will Background check requested Once his own officers were posted to the Justice Department, which oversees the FBI. The transition team is Allegedly relying on internal verification As well as outside law firms and unspecified allied groups to conduct background checks, the FBI is better equipped and has the necessary training and capabilities to conduct these investigations.
An FBI background check for political recruiters is just routine; There is no legal support for this. No other branch of government can force nominees to tolerate them. Trump himself has been skeptical of the FBI, so it’s not surprising that he avoids background checks. But they serve several important purposes.
Here’s what you need to know about FBI background checks.
What is the standard background check process?
The FBI background check process is simple, if difficult.
First, the incoming administration signs a memorandum of understanding with the Department of Defense to outline what information they seek about their nominees and what resources DOJ can provide to help uncover that information. Nominations to work on national security must be filled out a special form (This is used by the Department of Defense in evaluating personnel for security clearance).
The FBI may interrogate designated individuals and their contacts if necessary but may not collect documents or compel evidence. Cooperation is voluntary, but an attorney at the Washington, D.C., Emery Will & Henry firm Llewellyn Engel told Vox, “From an interview perspective, if the FBI calls you to ask about somebody, you might be more forthcoming” than a law firm or Other private agencies are conducting investigations.
Once completed, the full background check then goes to the president-elect, who, based on the results, can send the nominee to the Senate or decide to withdraw the nomination. If the nomination is for a high-level position, such as a cabinet member or an ambassador, investigations go to the appropriate Senate committee — for example, the Senate Armed Services Committee for a Secretary of Defense 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 do their own investigation,” Engel said. “They can always request that more information be collected about this person.”
Again, the process is not mandated by law. When did the practice start? President Dwight Eisenhower Subject to a background check has chosen to designate her and has since continued.
Is Trump following the normal process?
So far, Trump has deviated from the normal process, although the incoming administration has signed other important transfer deals. Tuesday with Biden at the White House.
The Biden administration said Politico That “progress has been made toward an agreement” between the Trump team and the DOJ, but it’s unclear how much progress.
“Trump-Vance transition lawyers to engage constructively with Biden-Harris administration lawyers on all deals contemplated by the Presidential Transition Act,” Brian Hughes, a spokesman for Trump’s transition team, said. told NPR. “We will update you when a decision is made.”
The Justice Department said in a statement that it is “prepared to provide briefings to the transition team about our activities and responsibilities, and that we are prepared to process security clearance requests for those who need access to national security information.”
Why is Trump not following standard procedures?
Heath Brown, a professor of public policy at the John Jay College of Criminal Justice, told Vox that no other president-elect has avoided the FBI background check process “in recent memory.” And Trump didn’t say why he didn’t delegate background checks to the FBI.
He does have a note, however Mistrust of the FBI After leaving office in 2021 after an investigation into his handling of secret documents, as well January 6, 2021, FBI investigation into insurrection And tries to overturn the 2020 election.
And as noted earlier, there is no law requiring Trump to follow the normal process. Reps. Ted Lew of California and Dan Baer of Virginia A bill was introduced in November to codify the practice into law, but it has yet to pass.
Instead of following the normal process, Trump’s transition team plans to proceed with FBI checks only after he takes office — that is, after he’s in control of the agency and has his own appointees in place. The Guardian reported on Wednesday. According to that report, Trump also plans to grant blanket security clearance, though it’s unclear if or how DOD will be involved in that process.
What happens now?
Without FBI background checks, various Senate committees can conduct their own investigations into nominees, according to Engel and Jennifer Selin, associate professors at Arizona State University’s Sandra Day O’Connor College of Law. Those investigations may or may not become public.
Even without an FBI investigation, potential red flags with nominees will sometimes emerge through reporting. The press recovered allegations of sexual misconduct by former attorney general nominee Matt Gaetz. And the alleged sex crimes of Defense Secretary nominee Pete Hegseth were also covered in the news. Both have denied wrongdoing.
“The media is a good ally for the Senate in some ways because it’s not just senators looking for and using their subpoena power and their background and different agencies to get information and conduct their own investigations,” Sellin said.
The Senate would ideally Start a confirmation hearing — with or without an FBI report —Prior to Inauguration Day on January 20, 2025.
