Commentary: Trump skipping FBI checks threatens national security

President-elect Donald Trump has been bypassing FBI background investigations for his cabinet appointees in favor of screening by private companies. The reasons?

The normal process can be slow. And it can reveal embarrassing personal information. Of course, it can! But those are not reasons to scrap an important safeguard to our national security.

Disqualifying facts are open and obvious for some nominees, such as Matt Gaetz, who withdrew from consideration for attorney general when it became clear he lacked sufficient support for Senate confirmation because of allegations of sexual misconduct and a thin legal resume. But for other nominees, derogatory information may not be public.

Since the Eisenhower Administration, the executive branch has used the FBI to conduct background checks. Presidential appointees and White House staff typically undergo background screenings to ensure they can be trusted with our nation’s most sensitive secrets.

The process is designed to screen out candidates who are not suitable for high-level decision-making positions because of problems such as addiction, psychological disorders, or a history of committing sexual abuse. A nominee with foreign business interests may skew decisions that favor his overseas portfolio.

Perhaps more importantly, the process seeks to weed out potential targets for blackmail because of undisclosed personal secrets, conflicts of interest, foreign ties or financial distress. Imagine a cabinet official who is hiding an extramarital affair. They may be tempted to share government secrets in exchange for silence. Or think of a broke cabinet official who is so desperate for money that they are willing to sell their access to government information. A background investigation assures the public that officials in sensitive positions can be trusted to act in the best interest of the American people.

But no law mandates background investigations for presidential appointees. Investigating suitability for high-level positions is a norm that presidents have followed for the past 70 years. Ultimately, the president decides who gets appointed, regardless of skeletons in a nominee’s closet. Recall that Trump overruled the judgment of intelligence professionals in his first administration when Jared Kushner, his son-in-law, could not receive a clearance.

As a presidential appointee during the Obama administration, I was required to undergo a background investigation. I completed an exhaustive government form known as an SF-86, which requires disclosing all prior residences, jobs, education, close family members, foreign travel, association memberships, and business interests. I signed releases permitting agents to review my financial, medical, and criminal records. I willingly submitted to this process because I knew it was a condition of being considered for the privilege of serving the United States as a presidential appointee. Agents investigated the truthfulness of my responses. They reviewed records and interviewed colleagues and acquaintances, asking whether I appeared to live beyond my means, was known to abuse drugs or alcohol, had foreign ties, or was associated with any groups dedicated to terrorism or overthrowing the U.S. government.

During several rounds of interviews, I answered questions about all these deeply personal matters, including a catch-all: Was there anything in my background not yet disclosed that could embarrass the president in any way? In the president-elect’s administration, it may be that no answer to that question would be disqualifying.

Using private entities to complete this process is a poor substitute for the FBI’s work for several reasons. First, the FBI has access to classified information, including secrets provided to us by our allies around the world. Among the most important disqualifiers are undisclosed relationships with foreign governments or nationals. A private firm would lack access to classified information and fail to detect a mole for a hostile foreign adversary.

Already, we know that Tulsi Gabbard, Trump’s pick for director of national security, has parroted Russian President Vladimir Putin’s false claim that Russia invaded Ukraine because it hosts U.S.-funded biolabs. Gabbard also admitted to a secret four-day meeting in 2017 with Syrian President Bashir al-Assad, who directed the killing of hundreds of thousands of people in his own country. Maybe these are innocent acts, but prudent governing would mean delving deeply into her background to explore all relationships with foreign governments before giving her the keys to our intelligence community.

A second reason private firms cannot conduct thorough investigations is their lack of subpoena power. FBI agents can use administrative subpoenas to access records from banks, credit reporting services, credit card companies, phone companies, internet service providers, and social media firms to verify information. These records may also raise red flags that a person is in financial distress, which could put them at risk of compromise.

Finally, private firms profit from conducting background investigations, unlike a government agency. This dynamic creates a conflict of interest. Firms that want to continue to provide services to the government are incentivized to move quickly and clear a president’s preferred choices for government positions. Even if private investigators find warning signs, they have reason to turn a blind eye and decline to investigate further, lest they uncover a disqualifying fact about the president’s preferred candidate and stall his agenda. Keeping the hand that feeds you happy can lead to results that may please the boss but harm our national security.

If Trump continues to skip FBI background checks, the Senate will remain the only check on nominees unsuited to serve. Currently, under a Memorandum of Understanding with the White House, the Senate Judiciary Committee receives the reports of background investigations prepared by the FBI. If there is no FBI background investigation, there is no report to be shared. The problem would be compounded if Trump used recess appointments and bypassed Senate confirmation.

When a president is hell-bent on breaking norms, popular opinion may be the only thing that can stop him. The public and the Senate should demand that Trump comport with the essential safeguards to our democracy, such as using the FBI to conduct background checks. The ethos to “move fast and break things” may work in the tech world, but it is an irresponsible way to safeguard a nation.

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This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Barbara McQuade is a professor at the University of Michigan Law school, a former US attorney and author of Attack from Within: How Disinformation Is Sabotaging America.

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