Trump Candidates and the FBI Background Check, Explained

President-elect Donald Trump and his transition team have not yet signed the usual documents authorizing the Federal Bureau of Investigation to conduct background checks on its nominees for major government positions, and it is unclear whether those nominees will benefit from 'an FBI background check.

Background checks reveal any serious concerns about applicants, not only criminal activity, but also financial or relationship issues that could compromise their ability to perform their jobs. They also provide the basis for security clearances necessary for senior national security officials responsible for handling sensitive information.

The checks aim to reveal whether there is reason to believe that these potential officials might abuse the power of their offices or whether they have vulnerabilities that could be exploited, either by U.S. citizens or foreign adversaries.

It's possible the FBI will be asked to conduct background checks next year. According to a report in the Guardian, Trump will request the background checks once his own officials are assigned to the Justice Department, which oversees the FBI. The transition team would rely on internal controls 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 capabilities to carry out these investigations.

An FBI background check for political appointees is only customary; there is no legal basis for this. No other branch of government can force applicants to undergo them. Trump himself has been skeptical of the FBI, so it is not surprising that he has avoided 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, albeit arduous.

First, the new administration signs a memorandum of understanding with the Justice Department outlining the types of information it seeks about its nominees and the resources the DOJ can provide to help uncover that information. Applicants who will work in national security must complete a special form (the same form that the Department of Defense uses to evaluate personnel for security clearances).

The FBI can interview the candidate and his contacts if necessary, but cannot collect documents or demand evidence. The cooperation is voluntary, but as Llewelyn Engel, an attorney with the Washington, D.C. firm Emery Will & Henry, told Vox: From an interview perspective, if the FBI calls you to ask questions on someone, you could be more open than with a law. company or other private entity conducting investigations.

Once completed, the full background check is then forwarded to the president-elect who, based on the results, can either return the nominee to the Senate or decide to withdraw the nomination. If the nomination is for a high-level position, such as Cabinet member or ambassador, inquiries are referred to the appropriate Senate committee, for example, the Senate Armed Services Committee for a nominee for Secretary of Defense.

The Senate committee is responsible for reviewing all of this information, so they will receive a big binder of all the material and can also conduct their own investigations, Engel said. They can always request that more information be collected about that person.

Again, the process is not prescribed by law. This practice began when President Dwight Eisenhower chose to subject his candidates to background checks and has continued since then.

Is Trump following the usual process?

So far, Trump has deviated from the usual process, even as the new administration signed other important transition agreements with the Biden White House on Tuesday.

The Biden administration told Politico that progress has been made toward an agreement between the Trump team and the DOJ, but the extent of progress remains unclear.

Trump-Vance transition lawyers continue to engage constructively with Biden-Harris administration lawyers regarding any agreements contemplated by the Presidential Transition Act, said Brian Hughes, a spokesperson for the Trump-Vance transition team. Trump transition, at NPR. We will keep you informed once a decision is made.

The Justice Department said in a statement that it stands ready to brief the transition team on our operations and responsibilities, and we are prepared to process applications for security clearances for those who will need to access national security information.

Why isn't Trump following the standard process?

No other president-elect has avoided the FBI background check process in recent memory, Heath Brown, a public policy professor at John Jay College of Criminal Justice, told Vox. And Trump has not explained why he did not instruct the FBI to conduct background checks.

And as previously noted, there is no law requiring Trump to follow normal procedure. Reps. Ted Lieu of California and Dan Beyer of Virginia introduced a bill in November to codify the practice into law, but it has not yet been passed.

Instead of following the usual process, Trump's transition team plans to move forward with checks of the FBI only after he takes office, that is, after he takes control of the The agency and will have appointed its own people, the Guardian reported on Wednesday. According to this report, Trump also plans to grant blanket security clearances, although it is unclear if or how the DOD will be involved in this process.

Without FBI background checks, individual Senate committees can conduct their own investigations of nominees, according to Engel and Jennifer Selin, an associate professor at Arizona State University's Sandra Day OConnor College of Law. These investigations may or may not become public.

Even without an FBI investigation, potential red flags about candidates will sometimes appear during reporting. The press has resurfaced allegations of sexual misconduct by former attorney general candidate Matt Gaetz. And Defense Secretary nominee Pete Hegseth's allegations of alleged sex crimes also came to light through news reports. Both men have denied any wrongdoing.

The media is in some ways a good ally for the Senate, because it is not just senators who dig in and use their subpoena power, backgrounds, and relationships with various agencies to obtain information and conduct their own investigations, Selin said.

Ideally, the Senate will begin confirmation hearings with or without the FBI reports before Inauguration Day, January 20, 2025.

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