“President-elect Donald Trump’s transition team is bypassing traditional FBI background checks for at least some of his Cabinet picks while using private companies to conduct vetting of potential candidates for administration jobs, people close to the transition planning say.
Trump and his allies believe the FBI system is slow and plagued with issues that could stymie the president-elect’s plan to quickly begin the work of implementing his agenda, people briefed on the plans said. Critics say the intrusive background checks sometimes turn up embarrassing information used to inflict political damage.
The discussions come as Trump has floated several controversial choices for high-level positions in the US government – including Matt Gaetz for attorney general and Tulsi Gabbard for director of national intelligence.
Ultimately, the president has the final authority on who he nominates and decides to share intelligence with, regardless of the established protocol set in the wake of World War II to make sure those selections don’t have unknown foreign ties or other issues that could raise national security concerns.
But circumventing background checks would be bucking a long-established norm in Washington. It also reflects Trump’s deep mistrust of the national security establishment, which he derides as the Deep State. Sources say he has privately questioned the need for law enforcement background checks.”
“After a student leader of the historic Tiananmen Square protests entered a 2022 congressional race in New York, a Chinese intelligence operative wasted little time enlisting a private investigator to hunt for any mistresses or tax problems that could upend the candidate’s bid, prosecutors say.
“In the end,” the operative ominously told his contact, “violence would be fine too.”
As an Iranian journalist and activist living in exile in the United States aired criticism of Iran’s human rights abuses, Tehran was listening too. Members of an Eastern European organized crime gang scouted her Brooklyn home and plotted to kill her in a murder-for-hire scheme directed from Iran, according to the Justice Department, which foiled the plan and brought criminal charges.
The episodes reflect the extreme measures taken by countries like China and Iran to intimidate, harass and sometimes plot attacks against political opponents and activists who live in the U.S. They show the frightening consequences that geopolitical tensions can have for ordinary citizens as governments historically intolerant of dissent inside their own borders are increasingly keeping a threatening watch on those who speak out thousands of miles away.”
“If the Ninth Circuit applies that same reasoning after it hears the case this week, it would deal a serious blow to the Fourth Amendment’s privacy protections in other contexts. In effect, that would say that as long as law enforcement has at least one legitimate reason for cracking open the safe deposit boxes, agents of the state are free to engage in all manner of rights violations without the targets having any legal recourse. It would be equivalent to saying that if the owner of a parking garage is suspected of a crime, all the cars (and the contents of those cars) stored there could be forfeited by the government.
“If the FBI can get away with this here, it’s a green light for the government to try the same ruse again throughout the country,” warns Johnson. “And it’s not just safe deposit boxes. The government could pull the same trick with storage lockers, hotels, even apartment buildings.””
“”Following the Sept. 11, 2001, terrorist attacks, FBI agents unsuccessfully attempted to pressure a group of innocent Muslims, including Muhammad Tanvir, to become informants for the Bureau,” notes the Institute for Justice (I.J.), which filed an amicus brief in Tanvir v. Tanzin. “Tanvir and the others—who were all either American citizens or lawful permanent residents—declined to become informants, because doing so goes against their sincerely held religious beliefs. FBI agents then harassed the group and placed them all on the No-Fly List.”
The Center for Constitutional Rights acts as co-counsels for the plaintiffs alongside the CUNY School of Law’s CLEAR Clinic. They sued under the Religious Freedom Restoration Act (RFRA) on the grounds that the plaintiffs’ Muslim faith forbids them to inform on coreligionists. The defendants—FBI agents who put Tanvir and the other plaintiffs on the no-fly list—protested that the RFRA doesn’t provide for monetary damages against government officials who violate rights, but the U.S. Supreme Court ruled otherwise in an important 2020 decision written by Justice Clarence Thomas.”
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“In 2021, The Intercept’s Murtaza Hussain wrote about Aswad Khan’s mistreatment by the FBI when he refused to be an informant. That same year, Ahmad Chebli, a U.S. citizen, described a similar ordeal.
“Agents threatened my family and me,” he wrote. “They said that if I didn’t agree to become an informant, my family would be investigated, my wife and I could be arrested, my children could be taken away, and my wife’s immigration status could be at risk.”
Chebli was finally removed from the No Fly list after the ACLU sued on his behalf.
Watchlists aren’t supposed to be used this way. In 2014, a federal district judge declared the byzantine process for people to challenge their inclusion on the no-fly list unconstitutional and ordered better guarantees of due process. But as Chebli’s case demonstrates, it’s easy for the government to put people on the lists and then pull them off years later only after they’ve gone through the hassle and expense of filing a federal lawsuit—if they ever do. With no further consequences, that leaves administrative tools like the No Fly List available for ongoing abuse.”
“These days, Republicans are making no secret of their plans to use a Hunter Biden inquiry next year as a platform to go after his father — after years of brushing off conflicts of interest within Trump’s family. No evidence has emerged to show that the business dealings of Hunter Biden, who’s faced a years-long federal investigation, affected his father’s decisions as president.
GOP lawmakers are pushing ahead anyway, planning a sprawling probe that will reach into the ethics of Hunter Biden’s artwork sales and other business deals, as well as policy decisions by the Biden administration.”
“The documents indicate the warrant was issued to investigate potential violations of the Espionage Act. That act states, among other things, that an official entrusted with sensitive or classified information who allows it to be taken away from its secure location through “gross negligence” or who knows it’s been removed from safety and doesn’t tell federal officials can be fined or imprisoned for up to 10 years. They also suggest an inquiry into possible improper removal or destruction of federal records, and obstruction of a federal investigation.
The receipt suggests 11 sets of documents were recovered, including items related to French President Emmanuel Macron, handwritten notes, photos, and top-secret materials.”
“According to a search warrant inventory that was unsealed on Friday, the FBI found 11 sets of classified documents, ranging from “confidential” to “top secret,” when it searched former President Donald Trump’s Mar-a-Lago resort in Palm Beach last Monday. The top-secret documents included some that were labeled “SCI,” or “sensitive compartmented information,” an especially restricted category derived from intelligence sources.
On the face of it, Trump’s handling of this information, which he took with him from the White House when he left office in January 2021, raises national security concerns at least as serious as those raised by Hillary Clinton’s use of a private email server as secretary of state. Trump has long maintained that Clinton’s mishandling of classified material when she ran the State Department was egregious enough to justify sending her to prison. But in his case, he says, the documents at Mar-a-Lago, despite their labeling, were not actually classified.
How so? According to a statement that Trump representative John Solomon read on Fox News after the search warrant and inventory were unsealed, Trump had a “standing order” as president that automatically declassified material he moved from the Oval Office to his residence at the White House. That explanation raises additional questions about Trump’s seemingly cavalier treatment of sensitive information”
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“In July 2016, when then–FBI Director James Comey announced that the FBI had not found enough evidence to justify criminal charges against Clinton, he reported that 110 messages in 52 unsecured email chains had been “determined by the owning agency to contain classified information at the time they were sent or received.” He said “eight of those chains contained information that was Top Secret at the time they were sent; 36 chains contained Secret information at the time; and eight contained Confidential information, which is the lowest level of classification.”
By comparison, the FBI’s list of items seized at Mar-a-Lago includes five mentions of “various” or “miscellaneous” top-secret documents, three mentions of “miscellaneous secret documents,” and three mentions of “confidential documents.” We don’t know how many documents were in each set or the precise nature of the information they discussed. But five sets of top-secret documents could easily contain more sensitive information than eight email chains that may have referred to top-secret material only briefly and/or in passing.
Comey said Clinton’s treatment of “very sensitive, highly classified information” was “extremely careless.” On its face, that judgment could support charges under 18 USC 793, which encompasses “gross negligence” in the handling of information “relating to the national defense”—a felony punishable by up to 10 years in prison. But Comey concluded that was not enough to justify prosecuting Clinton”
“Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case….In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice.”
The Mar-a-Lago search warrant was based on U.S. Magistrate Judge Bruce Reinhart’s determination that there was probable cause to believe the FBI would find “items illegally possessed” in violation of three statutes, including 18 USC 793. Although Trump has not been charged with any crime and may never face prosecution, his conduct arguably included some of the aggravating factors that Comey mentioned.
To start with, there is some evidence to support the inference that Trump’s alleged mishandling of classified material was “intentional and willful.” In January, after the National Archives and Records Administration (NARA) raised concerns that Trump had improperly removed documents that were covered by the Presidential Records Act, Trump’s representatives turned over 15 boxes. Noticing that some of the documents were marked as classified, NARA referred the matter to the Justice Department, which obtained additional documents from Mar-a-Lago under a grand jury subpoena in June. Around the same time, The New York Times reports, “a Trump lawyer” gave the Justice Department “a written declaration” saying “all the material marked classified in the boxes had been turned over.”
Judging from what the FBI says it found last week, that was not true. The FBI presumably presented evidence to that effect, possibly based on a Trump insider’s tip, in its search warrant affidavit (which, unlike the warrant itself and the inventory, remains sealed). That apparent misrepresentation may help explain why the search warrant cites not only 18 USC 793 but also 18 USC 1519, which makes it a felony, punishable by up to 20 years in prison, to knowingly conceal “any record, document, or tangible object” with “the intent to impede, obstruct, or influence” a federal investigation. Such concealment, if proven, would qualify as “efforts to obstruct justice,” another aggravating factor that Comey mentioned.
Because the volume, contents, and exact location of the documents seized by the FBI are uncertain, it is not clear whether the records at Mar-a-Lago amounted to “vast quantities of materials exposed in such a way as to support an inference of intentional misconduct,” another Comey criterion. The difficulty of assessing that question underlines how little information we have about the documents that were seized.
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“Here is where Trump’s defense comes in. “The very fact that these documents were present at Mar-a-Lago means they couldn’t have been classified,” his office says. “As we can all relate to, everyone ends up having to bring home their work from time to time. American presidents are no different. President Trump, in order to prepare for work the next day, often took documents including classified documents from the Oval Office to the residence.” In light of that practice, the statement says, Trump “had a standing order that documents removed from the Oval Office and taken into the residence were deemed to be declassified.” It notes that “the power to classify and declassify documents rests solely with the President of the United States.”
Without denying that point, Trump’s critics argue that such a policy would be highly irregular and careless. “Whatever POTUS’ ‘powers’ might be to declassify docs,” former FBI agent Asha Rangappa says on Twitter, “there are good policy and practical reasons…to follow a process, and for that process to be documented and reflected on the document markings themselves.”
Rangappa says “accountability” requires that declassification of a given document be justified by a rationale dealing with the national security implications, which “allows for objections from others if the reasoning is based on an incorrect premise.” She also cites the need to protect intelligence sources from “blowback.” In addition to “being dangerous and bad for [national security],” she says, automatic declassification of any documents that the president happens to remove from the Oval Office would cause “confusion and inefficiency and distortions in our intelligence collection, foreign policy, and defense efforts.”
If “Trump telepathically declassifies hundreds of docs on his way out,” Rangappa adds, President Joe Biden “can telepathically reclassify them immediately, too. See how stupid this gets? Markings would mean nothing. No one would know how to store things.”
Accepting Trump’s argument that any documents at Mar-a-Lago were ipso facto declassified, notwithstanding markings to the contrary, that information would be legally available not just to him but also to the general public, assuming there was no other statutory justification for restricting access. Unless classification decisions are utterly arbitrary or were clearly wrong with regard to every document that Trump retained, that seems like a pretty reckless way to handle sensitive material. But it would be of a piece with Trump’s behavior as president, which reportedly included tearing up and flushing documents that were supposed to be preserved under the Presidential Records Act.
The issues that critics like Rangappa raise go beyond the question of criminal liability. Let’s say Trump’s purported “standing order” means he is in the clear under 18 USC 793. Let’s also stipulate that meeting the mens rea requirements for convicting him of obstruction or “willfully” concealing documents that belonged in the National Archives would be a tall order. Trump’s behavior and excuses for it nevertheless provide further evidence, in case any was needed, that he is not the sort of person who can be trusted to hold any position of political power, let alone the presidency.
Back in 2016, when Trump was intent on making his opponent look bad, he claimed to be moved by the concerns of “long-term workers at the FBI,” who he said were “furious” that Clinton got off with a wrist slap for recklessly endangering national security. Now that the shoe is on the other foot, Trump dismisses the FBI’s avowed concerns as transparent excuses for the partisan “witch hunt” that supposedly has victimized him throughout his political career. One need not be a fan of the FBI to see that Trump’s view of what qualifies as shameful and disgraceful is based on no principle beyond his petty personal interests.”
“We need to remember that earlier this year officials retrieved boxes of materials from Mar-a-Lago that they said should have been turned over to the National Archives before Trump left office. According to reporting from CNN, investigators became aware of the existence of more such documents during a visit to Mar-a-Lago in June. But instead of simply taking these documents as officials had done previously, or subpoenaing Trump for the documents, investigators took the more serious step of requesting a search warrant. This suggests that officials at the Department of Justice did not think they would get all the documents in Trump’s possession if they filed a subpoena.
There is much we still don’t know about what the agents were looking for and what they found, but the process of applying for and receiving permission for the warrant indicates the significance of what happened Monday.
Typically, I would advise a client that an FBI search at your home means that you will likely face charges. That’s because a federal judge determined that there was good reason to believe a federal crime was committed and that evidence of the crime was in your home. To be clear, the execution of a search warrant doesn’t necessarily mean that the evidence points to the owner of the home as the person who committed the crime. It just usually works out that way.
To obtain the warrant, the DOJ had to present a detailed affidavit to a judge walking through the evidence they have that a crime was committed and providing some reason to believe evidence of that crime is at Mar-a-Lago right now. I emphasize “right now” because the government needs to show that there was probable cause to believe that evidence of the crime was present at Mar-a-Lago at the time of the search. It is extremely unlikely that a judge would approve a warrant based on stale evidence that had been received many months ago. The Justice Department also would act in the most conservative, cautious manner given the enormous stakes for the Department’s reputation and the nation as a whole.”
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“The nature of the possible charges is also very unclear. Recent reporting from both the New York Times and the Associated Press indicates the search warrant is related to classified material taken from the White House by Trump when he left office. But we know that mishandling classified documents only rarely results in charges.
James Comey was right when he testified that the DOJ typically does not prosecute cases involving the mishandling of classified material unless that material was deliberately transferred to a third party. That suggests to me that there is something important — call it a plus factor — we don’t know here. People on the right have rushed to judgment and are already saying, “This is just a docs case.” But we don’t know that. In fact, there is reason to believe it is more than that.”