A Primer for Navigating the Presidential Appointee Vetting and Confirmation Process
November 16, 2020
With the election over, the process of selecting and vetting individuals to fill the next administration’s key appointed positions is quickly shifting into high gear. For those who are called to serve in such positions, the decision to enter the process may be one of the most important and life-changing decisions they ever make. Accordingly, it is critical for anyone considering an appointed position to understand the vetting process from the start and to consider seeking the advice of experienced vetting counsel.
The rewards of public service as a high-level presidential appointee include the opportunity to serve one’s country, pursue important policy goals, and help shape events. In order to serve as a presidential appointee, however, candidates must first successfully navigate two complex political processes: nomination by the President and, for those positions that require it, confirmation by the United States Senate. Both processes entail extensive vetting of professional credentials, financial interests, and personal issues. Issues that arise during the vetting process can sometimes be personally embarrassing to the nominee and the nominee’s family, a possibility that prospective nominees should consider thoughtfully before submitting to the vetting process.
Although each administration’s approach to vetting varies somewhat, the core process remains fairly stable over time. The Trump administration took a notably relaxed approach to vetting nominees, particularly in terms of the threshold for abandoning a nomination based on issues detected during the vetting process. The incoming Biden administration likely will revert to the prior norm of vigorous vetting of every aspect of a nominee’s professional and personal life, with a fairly high bar for surviving the vetting process.
In this client advisory, we provide a high-level overview of the presidential appointee vetting process, highlighting the top five issues that typically are examined by the lawyers and others who conduct the vetting.
How Does the Nomination and Appointment Process Work?
Roughly a quarter of the 4,000 positions filled by Presidential appointment require Senate confirmation. Those nominations must be approved by one or more Senate Committees and then by a vote in the full Senate. Senate confirmation tends to be required for appointees to high-level positions, including the cabinet, other agency heads, general counsels, senior policy officials, and ambassadors. For senior, Senate-confirmed positions, the Transition, and later the White House, may assign a staff member (sometimes called a “sherpa”) to help guide a nominee through the confirmation process. However, senior nominees often also retain private counsel to advise them.
Whether or not a position requires Senate confirmation, the Transition team and the White House will thoroughly vet each candidate before proceeding with a formal nomination or appointment. At times in the past, during both the Obama and Trump administrations, presidents have announced an “intent to nominate” an individual before completing the vetting process and sometimes even before beginning the process. This is not in the nominee’s best interest because once a name is floated publicly, a later need to withdraw from the process due to vetting issues can be embarrassing.
What Issues Does the Vetting Team Examine?
During the transition period, vetting will be conducted by the Biden-Harris Transition team, with these responsibilities handed off to the White House Counsel’s Office and Office of Presidential Personnel following the inauguration. All prospective nominees will be subjected to a baseline review of public records, social media posts, and other public source information. They will be asked to complete very detailed questionnaires covering a wide range of topics. In addition, nominees will be expected to provide or authorize the release of tax records and prior writings and to submit lengthy financial disclosure and background check forms. Preparing these forms is one of the most complicated, time-consuming, and sensitive parts of the vetting process. In connection with the background check, as discussed below, the vetters will conduct interviews with many past and present associates of the nominee.
Particularly for appointees to the most senior positions, the vetting teams likely will draw on the assistance of the Federal Bureau of Investigation (“FBI”), the Office of Government Ethics (“OGE”), and agency ethics offices to complete their review. For Senate-confirmed positions, nominees generally must provide additional—only partly duplicative—information to the relevant Senate committee with jurisdiction over the nomination.
Top Five Vetting Priorities
Individuals who are interested in a presidential appointment are well-advised to focus attention on the following top five major vetting issues during the early stages of their candidacy.
1. Tax Issues
Although the Trump Administration put far less emphasis on tax issues, past administrations have treated this as a central focus during the vetting process. Prospective nominees should anticipate careful scrutiny by the transition and White House vetting team, as well as the Senate, of a wide range of tax issues, including federal and state income taxes; household employee taxes (e.g., nannies, housekeepers, landscapers); gift taxes; foreign taxes; any unusual tax minimization structures; and the amount of taxes actually paid. Candidates should be prepared to pay any back taxes owed and to explain the reasons they were not paid previously. Some Senate committees responsible for scrutinizing and holding hearings on presidential nominations may require that nominees certify their compliance with all tax law requirements, covering as much as the past ten years.
2. Ethics and Financial Disclosure Requirements
The Ethics in Government Act requires certain public servants to file a financial disclosure report on an annual basis. This report, which nominees must file in draft form with the pertinent federal agency and the White House during the vetting process, is scrutinized by vetters to discern and resolve any financial conflicts of interest posed by public service. As a general rule, presidential appointees must divest themselves of any financial holdings and other interests that may create a conflict of interest with their future position. For nominees with substantial personal wealth or business interests, this may present significant challenges and require careful analysis. Recent guidance has loosened the treatment of hedge fund or other pooled investment fund holdings, a topic we explored in depth in a prior client advisory, but much depends on the specific nature of the investment fund. For high net worth nominees who have substantial investments in hedge funds and other alternative investments, the disclosure and divestment issues related to these holdings could be a significant issue to be resolved during the vetting process.
It is not unusual for nominees who survive the vetting process to be required to divest themselves of specific holdings. In some cases, nominees who face such a requirement may be entitled to a “Certificate of Divestiture,” which is issued by OGE and which may allow the nominee to defer the obligation to pay capital gains taxes on the divested holdings. Whether divestiture is required and a Certificate of Divestiture will be issued is often a matter of negotiation among counsel for the nominee, OGE, agency ethics officials, and the White House Counsel’s Office. The prospective nominee may be asked to sign an ethics agreement, committing to divestitures or other measures that ethics officials believe are necessary to avoid conflicts of interest. Counsel often assists in the design and negotiation of such ethics agreements.
3. Litigation, Investigations, and Other Legal Proceedings
Background investigations routinely include public records checks in law enforcement databases, as well as state and federal court dockets. The pendency of a criminal investigation or a past criminal conviction, even for a misdemeanor offense, could render a nomination untenable. Candidates often have knowledge of the pendency of an investigation for which they are a target or subject, but that is not always the case. While criminal investigations or convictions have graver consequences for a nomination than civil litigation, the significance of civil proceedings should not be underestimated. As a general rule, litigation or similar proceedings that are relevant to the duties of the potential appointee receive heightened scrutiny. For example, financial litigation or penalties are especially important if the nominee is slotted for a position with the Treasury Department or another financial regulator. Employment discrimination or civil rights litigation is especially relevant to a civil rights enforcement position. Investigations involving other countries may be especially problematic if the candidate is being considered for a position in the Department of Defense or the intelligence community, or for any other position requiring a high level security clearance.
Domestic and personal conduct proceedings are relevant to all nominees. Judgments or allegations regarding delinquent child support or alimony payments, domestic violence or drug abuse, financial improprieties, and sexual or racial harassment will raise substantial, if not insurmountable, obstacles to many nominations, irrespective of the nature of the position. As with all requests for information from government officials during the appointment process, candor in dealing with potentially embarrassing personal issues is essential. Intentionally lying to the FBI, Congress, or other government officials involved in the vetting process is a criminal offense.
4. Publications and Organizational Affiliations
Candidates may be required to identify all published writings, significant speeches or panel presentations, and organizational positions and affiliations on extensive written questionnaires. It is critical that a nominee disclose any potentially controversial writings or affiliations early on in the vetting process. Political watchdog organizations closely monitor writings and affiliations in order to obtain evidence of public policy positions and personal beliefs, and a prospective nominee’s “paper trail” on controversial issues is likely to garner attention. Careful management of a nominee’s controversial public positions—including preemptive outreach to interest groups, the solicitation of bipartisan endorsements, and strategic public relations efforts—may avert or minimize unwanted attention. Active and informed political management is essential to prevent any groundswell of opposition from gaining momentum. Failure to identify controversial writings on vetting questionnaires can be a serious issue if the writing later comes to light, an issue that has bedeviled numerous nominees. The questionnaires often ask broadly worded questions about past writings, sometimes with no date restriction, potentially capturing articles the candidate wrote decades before, even in a student newspaper or yearbook.
5. Medical, Family, and Personal Issues
In rare cases, prospective nominees may be expected to undergo a medical examination in order to ensure that they will be able to withstand the physical rigors of service. Specialized follow-up may be necessary where a candidate’s medical history includes serious or chronic health conditions. Investigators who conduct personal background checks routinely seek information from neighbors, family members, and professional contacts regarding any evidence of drug or alcohol abuse, or other medical conditions that might impede a candidate’s ability to serve or might compromise the interests of the United States. Mental health counseling for bereavement, marital issues, or other life circumstances is no longer subjected to extensive scrutiny. A spouse or partner’s medical history may be relevant to certain positions, such as ambassadorial posts. Absent a special circumstance, however, the mental and physical health of a candidate’s children or other family members is generally outside the scope of the vetting inquiry.
Background Checks and Interviews
One of the most arduous parts of the vetting process involves filling out Form SF-86, which is used for general background check purposes and to begin the process of obtaining a security clearance, when a clearance is required. Like the financial disclosure form, completing the SF-86 requires the potential nominee and the nominee’s counsel to collect a vast amount of information going back many years concerning employment and travel history, contacts with foreign nationals, and a wide range of other matters.
Generally, the background review also involves an interview, which for senior positions would be conducted by the FBI, usually through contractors. It is advisable to have counsel present for this interview, as it could involve discussion of issues involving legal risk for the individual. Counsel will help the prospective nominee prepare for this interview. Often there would also be an interview conducted by the vetting team, consisting of Transition officials or outside volunteer lawyers, or by the White House Counsel’s Office and Office of Presidential Personnel. Again, personal counsel ideally should prepare the prospective nominee for this interview, attend the interview, and take detailed notes for future reference.
As noted above, with respect to these interviews and other submissions to the U.S. government, including the FBI, nominees are obligated to tell the truth, and could face charges under the federal false statements statute if they are not truthful. For this reason, among others, it is important to review with counsel sensitive issues that may arise during these interviews, in advance of submitting to them.
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Covington & Burling LLP has advised numerous nominees to cabinet, sub-cabinet, independent agency, and ambassadorial positions in Democratic and Republican administrations, and guided them through the full vetting and confirmations process.
The firm offers a multi-disciplinary team of lawyers with expertise in government ethics laws, tax laws, and security clearance procedures, as well as subject-matter experts in a wide range of areas relevant to nominations, such as foreign relations and national security.
To engage counsel regarding the vetting process, contact any of the following members of our Election & Political Law practice group.
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