Why Are FBI Checks on Trump Nominees Necessary? Fmr. Senate Counsels Explain

CHRISTIANE AMANPOUR, CHIEF INTERNATIONAL ANCHOR: Now, more than 75 Nobel laureates writing an open letter urging Trump to ditch RFK. Jr. as his choice for Health and Human Services Secretary. As Trump’s picks get more pushback, as we just were talking about, his team have signaled that they’re willing to go it alone, bypassing the traditional official vetting process. Now, in conversation with Hari Sreenivasan, former Republican and Democratic counsels to the Senate Judiciary Committee, Gregg Nunziata and Noah Bookbinder, explain why the Senate confirmation process and FBI background checks are so crucial.

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HARI SREENIVASAN, CORRESPONDENT: Christiane, thanks. Noah Bookbinder, Greg Nunziata, thank you both for joining us. You both have worked for your respective parties in a process that most Americans are unfamiliar with, on the Senate Judiciary Committee, to help do background checks on important nominees, right? And you both recently wrote an op-ed in The New York Times titled “FBI Checks on Trump Nominees Are a Must.” Gregg, explain why are these checks so critical?

GREGG NUNZIATA, FORMER COUNSEL, SENATE JUDICIARY COMMITTEE AND EXECUTIVE DIRECTOR, SOCIETY FOR THE RULE OF LAW: I think everybody’s familiar with the public part of the confirmation process, the hearings and all the politics around it. But the part that we wrote about, or that we really focused on in that op-ed is this background investigation, which is a part of the confirmation process that happens behind the scenes. It’s usually handled confidentially and discreetly, and it’s all about the Senate examining the character and the fitness of nominees and making sure they’re the type of people who can be trusted with the immense power that some of these offices offer their incumbents. And the — one of the questions you’re asking and a question that the Senate should be asking now of nominees is not just whether they agree with their politics, but whether they are the type of men and women who will be faithful to their oath of office, put the law and the constitution above their own whims or the whims of any political leader.

SREENIVASAN: So, Noah, let’s take a step back for a second. Put me in the hot spot here. Let’s say I am up for one of these important jobs. What are you and Gregg and the staff in the committee doing to find out whatever you can about me on whether I’m qualified for the job?

NOAH BOOKBINDER, FORMER COUNSEL, SENATE JUDICIARY COMMITTEE AND PRESIDENT AND CEO, CREW: Well, the first thing is actually there’s a process that the FBI does, and they’ve done this for decades. And they talk to the nominee. They talk to people who have worked with that nominee every stage in their lives, who have known them at different stages. They look into — they do criminal background checks, that they look at educational records. They really make sure that they get a sense of who these people are and have been at every stage. They write up often a couple 100 pages, that comes to the committee. And usually, councils for the committee, Gregg and I, when we did it together, we’ll review all of that information. And honestly, usually it ends there, because most people don’t have anything all that different from what the rest of us have. And you just need to take a look and make sure it all looks OK. Sometimes there are questions. There are — there’s something that may have happened. There’s incomplete information. And so, the councils on the committee will get together and figure out whether the FBI has to go back and talk to more people, do some more digging, or whether we can do — we being the councils on the committee, our own research, call people up, try to get more complete information. And, you know, a key thing here is that the FBI is not making decisions about whether somebody should be confirmed. The FBI and then committee staff and then the senators on committee are making sure they have the information so that can vote with a complete picture of who these people are.

SREENIVASAN: So, Gregg, you’ve worked on behalf of the Republican Party in this committee in that role. But why are you concerned about what’s happening now as this transition comes to bear?

NUNZIATA: Well, there’s been a lot of rhetoric from the president-elect and from some of his allies in the Senate that maybe the FBI process is not necessary and that it should be sidestepped. You know, you see these nominations, these names being floated without even preliminary diligence, as far as I can tell, on the part of the president’s team. And again, these are very important jobs in this process. Important and concerned that the president-elect and that some Republican senators, and I should say just some, I think most Republican senators have been very clear that the normal process is what should be followed here. But so, there’s been this talk about sidestepping the FBI and the background investigation and also musing from the president about using things like the recess appointment power to sidestep confirmation entirely. And the confirmation process is just a critical check and balance in our constitutional system, and it should not be minimized or pushed aside lightly. It’s a very, very important process to ensure that people who receive presidential appointments are fit to carry out the offices to which they’ve been nominated.

SREENIVASAN: And, Noah, let’s take each one of those kind of one at a time here, right? On the one hand, first is the FBI exclusively qualified, or why should they be trusted with the process versus, say, private companies that may be able to do similar or as deep a background check? What’s the difference?

BOOKBINDER: Well, there are a couple of key differences. One is that this is a process that has worked well for decades that the Senate knows how to work with. You know, Gregg and I worked on Capitol Hill at a time of deep partisan division, where there was lots of fighting about what kinds of nominees were qualified, how you should vote, whether what their policy preferences were, there was not fighting in this background review process. We did it in a cooperative way. And we got the senators the information they needed. So, there’s a lot of history and precedent that says this process works. That’s the first part. Second part is that with a private company, we have no way of knowing that they’re going to be consistent. that they’re going to be thorough, that they’re going to be objective, particularly if they’re hired by the president’s team, rather than being people who have worked for the federal government for years and years. With the FBI — not that the FBI is perfect in every way, but this — with this process, you know that you’re getting experienced people giving an objective look, getting senators they need so that — the information that they need so that they can decide about people taking important positions that matter a lot to Americans. With a private company, you don’t know what you’re going to get and we don’t necessarily have a lot of reason to trust that who the president-elect brings in is going to give the type of searching analysis and investigation that is needed.

SREENIVASAN: Right now, we’ve already seen examples of some of the nominees that the president has put forth. Matt Gaetz, for example, in the role of attorney general, and Pete Hegseth for defense secretary. Both of these men have come under public scrutiny for allegations of sexual misconduct in the past. And I wonder, would an FBI background check, if that had been performed in the first place, what is that — what is the benefit there?

BOOKBINDER: So, I think a key thing about this process is that it is a confidential process, and it can happen before anything is announced publicly. So, you can envision a situation where the FBI could do its check and maybe some of these nominations would never have been announced, and it wouldn’t have had to be in the newspaper. And you wouldn’t have had to have had this sort of public back and forth about are these nominees fit? Are they going to stay? Are they going to go? You — the president’s team has the information in advance and can make a quiet decision. So, that’s one benefit. The other one is that I think the press is doing a great job in digging into some of these folks, but there are going to be all sorts of questions about whether reporting from this outlet gets the full picture and reporting from that outlet, maybe find something different. With the FBI, again, not that the way things have been done in the past is always a perfect way to go, but there is real precedent for the FBI doing a thorough and objective job look. And when Gregg and I did this, if we thought there were gaps, we either ask them to go back and do more research or we did it ourselves. And so, there was a way for information to come in that senators would trust to be as close to the full picture as you could get.

SREENIVASAN: Gregg, the president for years now has already had problems with how he feels persecuted by the U.S. government, like the investigations launched into him and his business dealings over time. So, there is kind of a general, I don’t know, temperature of distrust there. What do you do about that?

BOOKBINDER: Well, you know, again, I think I’d like to remind everybody that this is not an FBI check in the sense the FBI is not making a decision. The FBI is gathering information for the Senate to review. It’s done discreetly, confidentially, it’s not public, and this has been a system that has worked for at least 40 or 50 years. So, I understand that a reformist president who has objections to how the current government and federal investigatory bodies have functioned. Even if those are well placed, I really don’t think there’s a lot to fear here. Again, it’s a very discreet confidential process and there’s no judgment being placed in the hands of the FBI or career government employees. The judgment is with — is within the hands of the Senate and in particular, at this point, the Senate controlled by a majority of the president’s party.

SREENIVASAN: Noah, as we talk here, you know, one of your concerns is the number of people that the president has nominated who are billionaires. Why is their sort of asset holdings automatically something that would be of concern during an FBI background check?

BOOKBINDER: Well, I think the wealth of nominees — and first of all, it doesn’t inherently disqualify anybody. You can have people who are distinguished professionals who deserve a position based on the career that got them very wealthy, but there are certainly potential concerns that come up. One is the potential for conflicts of interest, is that the potential for officials to be asked to make decisions on questions that specifically affect their wealth, maybe affect companies that they own or that they work for, or that they invest in. And so, you know, that’s the first piece, is to really determine what somebody’s financial interests are. So, you can see whether there might be conflicts. A lot of those conflicts could be addressed by divesting or recusing. So, it doesn’t necessarily mean that somebody’s not fit to be in office, it just may inform the kinds of questions that a Senate — senator asks and the kinds of assurances they seek. The other thing that comes with tremendous wealth is a question of whether, you know, cabinet figures filled with very wealthy people is going to be looking out for the interests of regular Americans who aren’t tremendously wealthy, rather than serving essentially in the interest of millionaires and billionaires. That’s not really a background investigation question, that’s a question for the Senate and the American people to consider, you know, in terms of what kind of government they want. But so really, you know, in terms of the investigation, it’s making sure that the Senate has the information it needs to get assurances that people will take the steps they need to make decisions on behalf of the American people rather than their own bottom line.

SREENIVASAN: One question at the core of this is, is there a legal requirement that this background check has to happen? Going forward, can the president say, I don’t really care, I’m going to appoint this person to this role because it’s within my right to do so? And let’s say I have influence enough over the Senate Republicans and the Senate at large to say, get my nominee through. Gregg?

NUNZIATA: Yes, I think the American Revolution was fought against the king, but particularly, in the colonial experience against the king’s appointees, right? And the grievances Americans had were over royal appointees who were often unqualified, owe their office to political flattery of the monarch and acted as petty tyrants with the power that they were granted over Americans. So, when the founders wrote the constitution, Senate confirmation was a core part of our — of the protection of our liberties. And the idea was that by involving the Senate in this process you would make sure that the president couldn’t appoint people who are unqualified, merely political flatterers of him or her and who understood their duties under the law. I mean, this is just — it’s a core feature of our constitution, and it should not be taken lightly. So, Senate confirmation is important and it is much less meaningful if it’s not informed — it’s not an informed process. So, this FBI process is what’s developed to help the Senate. You know, now we process hundreds and hundreds of nominees in the Senate, many more than in the early days. And there’s just a lot of information out there, a lot to go through. And this process is built up to make sure that the Senate’s consent to appointments is informed consent. And tossing it aside would be a massive disruption in the balance of powers. And I think Republican Senators, Democratic Senators, all Senators should insist that they will not process nominations blindly. They will not process nominations without an adequate record on which to decide. When Noah and I were on the Senate Judiciary Committee, we simply didn’t move forward on nominations until this was done. Until we had the FBI file on hand, until we had reviewed it, and we had made any necessary follow up, so that our bosses, the Senators, could make informed judgments on these nominations.

SREENIVASAN: Gregg and Noah, both of you, I hear you, in the background, still considering the FBI check as one of the gold standards, that it can be trusted. It is a source of information that it is inherently kind of unbiased on what they bring up and how you present it. And I wonder if you are concerned about how, let’s say, a new FBI director gets into office, who has greater allegiance to the president, can that process itself be tampered with, weaponized to change your opinion of whether or not that is still the gold standard?

NUNZIATA: I am worried over time the kind of impact that a president could have on the federal civil service, on the judiciary. Right now, I do have a lot of faith in these institutions and I hope that they remain strong, not to say they’re not without problems, and I think we can talk about reforms. We’re talking about reforms to this process. I don’t want to suggest — I don’t think either Noah or I would suggest it’s perfect. But it is — it’s thorough and it’s been handled with discretion in the past. And I hope that that will continue to be the case.

SREENIVASAN: Noah?

BOOKBINDER: I’m certainly deeply, deeply troubled by nominees who have voiced a desire to use government to settle political scores, to go after perceived enemies. I don’t think we should be thinking about presidents as having enemies. You have people who have different ideologies and different goals, but this appears to be a president who believes he has enemies. It is very worrisome. I do think that the many thousands of experienced professionals in a place like the FBI and throughout government are going to continue trying their best to do their jobs in a professional and objective way. As Gregg said the FBI is not a perfect institution. The federal government sure as heck is not perfect. There are things that could be done better. I do believe that even if some of these people who have made these kinds of statements are confirmed and try to do their jobs in that way that the men and women of the federal government will try to continue to be objective and do their jobs in fair ways. If ultimately over time, there are firings and replacements of civil servants with loyalists and requirements that people do their jobs in biased ways, then we’re going to have to re-evaluate what we think about a process like this. I don’t think that’s where we are now. I hope that’s not where we go. It is certainly a source of concern.

SREENIVASAN: Noah Bookbinder, the president and CEO of CREW, and Gregg Nunziata, executive director of the Society for the Rule of Law, thank you both for joining us.

NUNZIATA: Thank you.

BOOKBINDER: Thanks so much for having us.