Are FBI Background Checks Required For Trump Cabinet Nominees? No—But GOP Senators May Insist On Them

Topline

Outgoing Senate Majority Leader Chuck Schumer, D-N.Y., advocated for FBI background checks on President-elect Donald Trump’s nominees and appointees in a new letter—as Trump has reportedly so far resisted the standard protocol amid speculation the vetting process could be problematic for some of his controversial picks.

FBI Director nominee Kash Patel speaks during a campaign rally on October 8, 2022, in Minden, … [+] Nevada.

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Key Facts

Schumer, in a letter to incoming Majority Leader John Thune, R-S.D. dated Sunday, wrote that Senate Democrats “commit to working in a bipartisan fashion to process each nominee by reviewing standard FBI background-investigation materials,” among other standard protocols part of the Senate confirmation process.

The letter comes as Trump’s transition team has yet to sign a memorandum of understanding with the Biden administration that would allow the FBI to begin the background checks, according to multiple reports.

Trump’s transition team will reportedly skip FBI background checks for some of his cabinet nominees and use private firms to vet his candidates, CNN reported last month.

Appointees will be granted interim security clearance immediately on his first day in office and will undergo FBI background checks after his administration takes over the agency, The Guardian reported, citing unnamed sources.

A bipartisan coalition of senators have expressed a need for FBI background checks as a prerequisite to the Senate confirmation process: Sen. Amy Klobuchar, D-Minn., told ABC she “can’t” make a decision about whether to approve the nominees “without the background checks,” adding, “we require these background checks of DEA agents . . . first-time prosecutors . . . why wouldn’t we get these background checks for the most important jobs in the United States government?”

Sen. Tammy Duckworth, D-Ill., speaking about Director of Intelligence nominee, former Rep. Tulsi Gabbard, D-Hawaii, told CNN, “my worry is that she couldn’t pass a background check,” referring to Gabbard’s controversial links to foreign adversaries, including Syrian President Bashar al-Assad, and her comments viewed as sympathetic to Russia.

GOP senators, including Sen. Susan Collins, R-Maine, Sen. Kevin Cramer, R-N.D., and Sen. Lisa Murkowski, R-Alaska, have also spoken about the need for background checks in discussing some of Trump’s more controversial nominees.

Murkowski told The Hill, “it’s important to do these background checks, and the FBI has done this” for decades, while Collins told the Associated Press, “it’s important that the Senate go through its process of making sure that we have a background check,” referencing Trump’s initial pick for attorney general, Rep. Matt Gaetz, R-Fla., who bowed out of the process last week amid a deepening sexual assault scandal.

Cramer argued, “the FBI does have access to information that probably a private firm wouldn’t have, even a really good savvy one,” The Hill reported, referring to Trump’s reported plans to use private companies to vet his candidates.

Contra

Sen. Bill Hagerty, R-Tenn., defended the notion that Trump could forgo FBI background checks in an interview with ABC and suggested it was more important for the Trump administration to “get to work again” rather than wait for the background checks to be completed. “I don’t think the American public cares who does the background checks,” he said. “What the American public cares about is to see the mandate that they voted on delivered upon.”

Tangent

Trump has tapped controversial lawyer Kash Patel as his pick for FBI director. Patel’s appointment is contingent on confirmation by the Senate and the resignation or firing of FBI Director Christopher Wray, who Trump appointed in 2017 and whose term expires in 2027. Patel, who served a number of roles in the first Trump administration and has remained a fierce Trump defender since he left office, has expressed plans to drastically reshape the agency, which he refers to as the “deep state,” echoing Trump’s rhetoric. He has criticized various actions it’s taken in connection with investigations into Trump’s conduct, including its 2022 raid at Mar-a-Lago as part of the Justice Department’s classified documents probe.

Why Is Trump Reportedly Bypassing Fbi Background Checks?

CNN sources said Trump’s transition team believes the FBI process is too slow, while a memo written by Trump advisors suggest he should skip the FBI checks and order security clearances for a bulk of his nominees and appointees immediately after taking office, The New York Times reported before the election, citing three unnamed sources briefed on the proposal. Trump and his allies have expressed a deep distrust of the FBI since his first term in office. Trump has referred to the FBI and the Justice Department as the “deep state” and has promised to overhaul the agencies, criticizing the FBI for investigating coordination between his 2016 campaign and Russia. A Justice Department inspector general report found that the FBI made repeated errors in seeking approval to conduct surveillance on former Trump campaign advisor Carter Page.

What Do Fbi Background Checks Include?

The FBI scours law enforcement databases, employment history and conducts interviews with people close to the individuals they are investigating in search of any criminal conduct, psychological conditions, behaviors such as substance abuse, foreign connections and personal finances, among other data points, according to The New York Times.

Are Cabinet Officials Required To Undergo Fbi Background Checks?

No. It’s a long-standing precedent for presidential appointees and nominees to undergo FBI background checks, but it’s not legally required. Government officials and contractors who need access to classified information can be granted one of three levels of security clearance: confidential, secret and top secret, according to the Congressional Research Service. Most security checks are performed by the Department of Defense Counterintelligence Security Agency, rather than the FBI.

Have Presidents Ever Skipped Fbi Background Checks For Their Appointees And Nominees?

Trump granted security clearances to about 25 people whose applications were rejected over security concerns during his first term, CNN previously reported. Trump granted a top-secret security clearance to his son-in-law and former White House advisor and Middle East envoy Jared Kushner amid an internal debate about whether he should be upgraded from interim status over concerns about his and his family real estate business’s links to foreign governments and investors, according to The New York Times.

Key Background

Speculation has been raised that FBI background checks could bring to light damning information regarding several of Trump’s appointees and nominees, including Gabbard. Trump’s nominee to lead the Department of Defense, former Fox News host Pete Hegseth, was also the subject of a 2017 sexual assault investigation by police in Monterey, Calif., though he was never charged and denies the allegations. If Trump does decide to skip the process, it could raise the possibility the Senate rejects some of his nominees, who can afford to lose only four Republican votes to be confirmed, assuming all Democrats vote against the nominee. Trump completed the process of nominating top cabinet officials over the weekend with the announcement that he tapped former policy advisor Brooke Rollins to lead the Department of Agriculture.