(Bloomberg) -- President-elect Donald Trump is poised to skip over FBI vetting of his nominees, upending more than 60 years of precedent and putting him on a collision course with members of his own party as he tries to power controversial cabinet picks through the Senate.
Republican senators have balked at Trump potentially forgoing the routine FBI background checks to install former Representative Matt Gaetz as attorney general as well as other controversial nominees like Pete Hegseth to lead the Pentagon and Tulsi Gabbard, another former House member, to run national intelligence.
Trump’s transition team hasn’t signed an agreement with the Justice Department and FBI that would allow the bureau to vet nominees, according to a person familiar with the matter who asked not be identified discussing internal deliberations. The agreement is typically an initial step to begin the process of vetting.
“We are prepared to deliver briefings to the transition team on our operations and responsibilities, and we stand ready to process requests for security clearances for those who will need access to national security information,” the department said in a statement Wednesday.
Senators like Susan Collins of Maine, a crucial Republican swing vote, and Roger Wicker of Mississippi, whose Armed Services Committee will oversee the nomination of Hegseth, have said they want the traditional FBI background checks as they exercise their constitutional role vetting cabinet picks.
Republican Bill Cassidy of Louisiana, who will lead the panel with jurisdiction over Robert F. Kennedy Jr.’s nomination to Health and Human Services Secretary, agreed.
“I believe that the current process of having a background check, a committee investigation and a public hearing has served us very well and constitutes our responsibility,” Collins said this week.
Instead, Trump is considering privately run vetting, CNN reported, even as Senate Republicans continue to push for a full FBI check. A spokesperson for Trump’s transition team did not respond to a request for comment.
All it takes to force Trump’s hand are four Republican defections in a Senate expected to have a 53-47 GOP majority.
That’s precisely what happened in Trump’s first term during the confirmation hearings on Supreme Court pick Brett Kavanaugh, when Collins, Lisa Murkowski of Alaska and Jeff Flake of Arizona insisted on reopening the FBI’s background check as allegations continued to pour in. He was ultimately confirmed.
While background checks happen at the discretion of the president-elect and are delivered to his office, the FBI was authorized to conduct these investigations under the 1963 presidential transition law and a Bill Clinton-era executive order on vetting people to gain access to classified information.
Gaetz has been the subject of a long-running House Ethics Committee sexual misconduct investigation while Hegseth’s financial settlement with a woman amid reported allegations of sexual assault recently came into public view. Gaetz and Hegseth have denied the accusations.
A lightning rod within his own caucus, Gaetz has been plagued by scandals, including an investigation by the Justice Department that he had a sexual relationship with a 17-year-old girl in exchange for money. He was notified last year that he wouldn’t face charges.
On Wednesday, Senate Democrats, who currently hold the majority, sent a letter to FBI Director Christopher Wray requesting “the complete evidentiary file” on Gaetz.
“The grave public allegations against Mr. Gaetz speak directly to his fitness to serve as the chief law enforcement officer for the federal government,” they wrote.
Gabbard would also face scrutiny for her comments sympathetic to Russia as well as a 2017 visit to Syria where she met with President Bashar al-Assad.
Gaetz and Hegseth’s rocky path to confirmation has prompted Vice President-elect JD Vance to arrange meetings for them with key Republican senators. Meanwhile, the House Ethics panel met privately for more two hours on Wednesday afternoon and did not come to any agreement on releasing the report, Chairman Michael Guest said.
“Being completed as expeditiously as possible, the background investigation focuses on character and conduct,” the FBI said in an emailed statement Tuesday. The agency doesn’t render a judgment on what it finds.
The FBI has more resources than private companies, said Barbara McQuade, a former US attorney for the Eastern District of Michigan and a contributor to Bloomberg Opinion. National security applicants submit a form, known as an SF-86, which is typically posted online by the Senate committee of jurisdiction. Attorney General Merrick Garland’s completed questionnaire is still available.
“It’s a very detailed process,” said McQuade, who went through the process herself. “I agreed that they may search my criminal background, I agreed that they may have access to my finances, I agreed that they may interview all my friends and family.”
Every place a nominee has lived and worked for the last 10 years, along with schools, assets and bank accounts, are put into the form, and then the FBI begins its investigation to check the veracity and any potential red flags.
Anyone who might be embarrassed at the findings shouldn’t apply, she said, adding that forgoing the FBI check is a “terrible idea.”
The FBI has a protocol and standards, and are subject to the Privacy Act, she said. The agents themselves have been vetted and undergone the same clearance. “If you farm this out to private companies, who are the people who’s doing this? Are they on the take? We don’t know.”
Ethics Committee
Senator Dick Durbin, the outgoing Judiciary chairman and No. 2 Senate Democrat, said the FBI also brings with it credibility. He’s floated issuing subpoenas to the House Ethics Committee as well as to the Department of Justice for their investigative files on Gaetz, and is weighing seeking witness testimony from women who testified in the Ethics probe.
Republican Senator Chuck Grassley, who is in line to be Judiciary chair in January, is so far holding his fire.
“I’m not going to make a decision on what information we need, but I’m saying to the people that want any cabinet person to get through, not just Gaetz, it’s going to be a lot faster if you give us all the information that we want,” he said.
Trump has threatened to use recess appointments to speed his nominees through while the Senate is out of session. Doing so, however, is potentially problematic given the tight margins in both chambers. And, in Gaetz’s case, the level of animosity congressional Republicans have for him would make it harder for Trump to do an end-run around the Senate.
There’s also potential blowback for the president-elect as that sort of scorched-earth tactic could have repercussions for other parts of his agenda, where he’ll need a united party to pass tax cuts and other budget-related items.
Republican senators are eager to protect their constitutional role to advise and consent, said Senator Mike Rounds of South Dakota, a pillar of the establishment wing of the party.
--With assistance from Billy House, Chris Strohm and Stephanie Lai.
(Updates with Ethics Committee meeting in 17th paragraph.)
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