The Dictatorship
Biden has one last chance to protect America from Trump’s attempts to skirt the law
We had fair warning. Last month, The New York Times reported that then-candidate Donald Trump’s advisers were telling him to skip FBI background investigations for his high-level selections for nominees. Last week, BLN, citing “people close to the transition planning,” reported that Trump doesn’t plan to submit the names of at least some of his Cabinet-level picks for FBI vetting. Whether you’re Republican, Democrat or independent, and regardless of whether you’re energized or enraged by Trump’s controversial picksyou should be concerned about the possibility of a vetting process that’s really no process at all.
Whether you’re energized or enraged by Trump’s picks, you should be concerned about the possibility of a vetting process that’s really no process at all.
The FBI has conducted background investigations of White House nominees since at least the tenure of President Dwight Eisenhower’s time in office. Even so, there’s no law clearly mandating presidents or presidents-elect to submit their nominees and appointments to the FBI for investigation. In 1953, Eisenhower issued Executive Order (EO) 10450calling for investigations of prospective federal employees. Yet, executive orders don’t have the full effect of a law and are only binding on the executive branch. Worse, Eisenhower’s executive order is subject to interpretation. Consider Section 2, “The head of each department and agency of the Government shall be responsible for establishing and maintaining within his department or agency an effective program to ensure that the employment and retention in employment of any civilian officer or employee within the department or agency is clearly consistent with the interests of the national security.” There’s lots of wiggle room there.Section 3 of that executive order reads, “The appointment of each civilian officer or employee in any department or agency of the Government shall be made subject to investigation … but in no event shall the investigation include less than a national agency check (including a check of the fingerprint files of the Federal Bureau of Investigation).” That means that Trump, who claims he’s using private firms to conduct background inquiries, might get by with having whatever firm that is simply checking FBI fingerprint files. Yet, despite there being no mandate, the intent here was a government inquiry involving the FBI.
Subsequent presidents, including Bill Clinton and Barack Obamarevised Eisenhower’s edict to mitigate intrusive inquiries into sexual orientation in the granting of security clearances, but still missing is a specific mandate for FBI investigation of White House nominees. And again, an executive order isn’t quite a law. Clearly, the intent in these executive orders has always been for a government agency, particularly the FBI, to conduct these inquiries, but we have an incoming president who thumbs his nose at rules and intentions.The Presidential Transition Act of 1963 directs the FBI to conduct such background checks “expeditiously” for “individuals that the President-elect has identified for high level national security positions.” But what if he never formally identifies and submits his picks to the Department of Justice and the FBI? In his last administrationTrump overrode security adjudicators who denied clearances for his son-in-law, Jared Kushnerand many others, after FBI background checks resulted in national security concerns. This time, he appears poised to dispense with the FBI checks and potentially with the Senate confirmation process by making recess appointments.
That leaves us with two pertinent memorandums of understanding (MOU) which should enable President Joe Biden and/or the U.S. Senate Judiciary Committee to quickly do something to preserve national security and the Constitution’s advice, and consent powers conferred on our elected lawmakers.
This time, he appears poised to dispense with the FBI checks and potentially with the Senate confirmation process by making recess appointments.
First, Biden should rely upon the existing MOU between the Department of Justice and his office, as well as the Presidential Transition Act, to investigate the people Trump says he wants to put in office. The MOU sets out procedures for requesting background investigations of nominees “at the request of the president.” It doesn’t say the president-elect, it says “president.” That’s you, Joe. As for the transition act, it reads as applying to people “…the President-elect has identified” for high-level positions. Well, the president-elect has already publicly identified those people. And Biden should respond.What happens if a nominee refuses to cooperate, won’t provide his consent to be investigated or won’t fill out any forms? The MOU has a remedy for that: “The DOJ and FBI may consider a request from the President for a name check or BI without the consent of the appointee if justified by extraordinary circumstances.” I’d say with some of these nominees named by Trump, and the fact that Trump may forego FBI vetting of them, we have extraordinary circumstances.
The Senate Judiciary Committee has its own pertinent MOU with the Counsel to the President. That document says the committee “shall have access to” the FBI reports on nominees for attorney general, FBI director or summaries for “all other DOJ nominees and non-judicial nominees.” Emphasis on all other and non-judicial. We know senators want the details of the House Ethics Committee inquiry into former Rep. Matt Gaetz, Trump’s pick for attorney general. An FBI background investigation would certainly include a request to review that report, as well as the DOJ criminal investigation, now closed, into Gaetz. The Senate Judiciary Committee should make a bipartisan request for an FBI background check of Trump’s picks now. Regardless of party affiliation, if senators relinquish their advice and consent authority or confirm a nominee without benefit of knowing the risk they pose, then they set a precedent for never again exercising their constitutional powers.
You’d be right to ask, “What’s the point?” After all, Trump is unlikely to read, let alone act upon, any derogatory information developed in FBI reports. The point would be to force Trump’s hand. Drop the reports on his desk and let him go forward with nominees who potentially are either found through investigation to be unqualified, at risk of compromise, or even a national security threat. Let Trump order White House security clearance adjudicators or his hand-picked agency heads to grant security clearances to seemingly unqualified candidates. Let the Senate affirm nominees after they’ve read details about the kind of people who may lead the DOJ or serve as the director of national intelligence.
Don’t take it from me. Here’s what Founding Father Alexander Hamilton said about the Senate’s advice and consent role, and the need for checks and balances against a president’s nominees. “…the president would be ‘ashamed and afraid’ to bring forward unmeritorious candidates, whose only qualifications would be [hailing] from particular states, or being personally allied to the president, or ‘possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.’”
Biden should be neither ashamed nor afraid to thoroughly investigate Trump’s picks, given the signs that Trump may not. Through executive order, he should mandate that the FBI conduct background investigations on Trump’s picks and instruct the FBI to begin the process now. The U.S. Senate should use its power to request the same of the FBI.
The clock is ticking.
Frank Figliuzzi is an BLN columnist and Senior National Security and Intelligence Analyst for NBC News and BLN. He was the assistant director for counterintelligence at the FBI, where he served 25 years as a special agent and directed all espionage investigations across the government. He is the author of “The FBI Way: Inside the Bureau’s Code of Excellence.”
The Dictatorship
Justice Jackson keeps calling out what she sees as needless Supreme Court interventions
Justice Ketanji Brown Jackson continues to speak out when she believes her colleagues are misusing their power. The latest example came Monday, when the Biden appointee dissented from a Supreme Court ruling in favor of law enforcement in a Fourth Amendment case.
In District of Columbia v. R.W.the high court majority disagreed with a ruling from D.C.’s appeals court that said a police officer violated the amendment by stopping a person without reasonable suspicion. In an unsigned through the court opinion, the justices said the D.C. court failed to properly consider the “totality of the circumstances.” The justices summarily reversed the lower court.
Jackson, however, saw the maneuver by her colleagues as heavy-handed.
In her dissent, she wrote that if the court’s intervention “reflects disapproval” of the D.C. court’s “assessment of which particular facts to weigh and to what extent, I cannot fathom why that kind of factbound determination warranted correction by this Court.” She deemed the move “not a worthy accomplishment for the unusual step of summary reversal.”
A notation at the end of the majority’s opinion said that Justice Sonia Sotomayor would have denied D.C.’s petition for high court review, but she didn’t join Jackson’s dissent or write her own to elaborate.
Jackson’s dissent follows a lecture she gave last week at Yale Law School in which she criticized what she saw as her colleagues’ disrespect of lower courts’ work.
Monday’s ruling appeared among several high court actions on a 25-page order lista routine document containing the latest action on pending appeals. The list is mostly unexplained denials of petitions for review, but sometimes it contains opinions and justices writing separately to explain themselves.
In another case on the list, Sotomayor, Jackson and the court’s third Democratic-appointed justice, Elena Kagan, all noted their dissent from the majority’s unexplained summary reversal in favor of law enforcement in a qualified immunity case.
It takes four justices to grant review of a petition. That simple math underscores the lack of power wielded by the three Democratic appointees, especially on the most contentious issues.
On that note, one of the new cases the court took up on Monday involves its latest foray into religion in public life, which the religious side has been winning at the court. The new case is an appeal from Catholic preschools in Colorado that want public funding while still admitting, as they wrote in their petition“only families who support Catholic beliefs, including on sex and gender.” The case will be heard in the next court term that starts in October.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro,” a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
The Dictatorship
The White House’s personal, financial and diplomatic lines keep blurring
About a month ago, when Donald Trump spoke at a conference for Saudi Arabia’s sovereign investment fund, it was hard not to notice the complexities of the circumstances. On the one hand, Riyadh has helped steer the White House’s policy in Iran. On the other hand, the president’s son-in-law, having already received billions of dollars from Saudi Arabia, recently turned to the Middle Eastern country for more money for his private investment firm.
All the while, Saudi officials remain focused on private dealings with Trump’s family business, as the Republican extended his public support to the sovereign investment fund, ignored Pentagon concerns about selling F-35 fighter jets to Saudi Arabia and designated Saudi Arabia a “major non-NATO ally” as part of a new security agreement.
The trouble is, it’s not just the Saudis.
The New York Times reported on wealthy interests in Syria with ambitions plans for the nation’s future who needed the U.S. to drop the economic sanctions that crippled the country during Bashar al-Assad’s reign. One Syrian-born businessman, Mohamad Al-Khayyat, secured a meeting with Republican Rep. Joe Wilson of South Carolina, who recommended that plans for a luxury golf course carry the Trump Organization brand as a way of getting the American president’s attention.
The Times’ report, which has not been independently verified by MS NOW, added that the businessman was way ahead of the congressman. He’d already planned to propose a Trump-branded resort. The same businessman’s brothers, who enjoy the backing of Thomas Barrack, the American president’s special envoy to Syria, were also negotiating a real estate partnership with Ivanka Trump and Jared Kushner.
The Times summarized the broader context nicely:
Such a mixing of personal and diplomatic affairs has long been the norm in Middle Eastern nations, where a small set of players have historically run, and profited from, their dominant role in society. But it has become the way Washington operates in Mr. Trump’s second term, too.
Business discussions involving the president’s family … are consistently blurred with important policy decisions or consequential nation-to-nation negotiations.
Not to put too fine a point on this, but developments like these aren’t supposed to happen in the U.S. If a foreign country wants a change in federal economic sanctions, it’s supposed to go through proper diplomatic and economic channels as part of a formal process to prevent corruption and potential conflicts of interests.
In 2026, that model has been torn down — and replaced with what the Times described as “a warped system of executive patronage,” which is awfully tough to defend.
The article added:
Mohamad Al-Khayyat returned to Washington late last year toting a special stone celebrating the proposed golf course, carved with the Trump family emblem. He presented it to Mr. Wilson in his Capitol Hill office to deliver to the White House. Mr. Al-Khayyat then joined meetings with other lawmakers to push the sanctions repeal.
Weeks later, legislation for a permanent repeal won approval in Congress and was signed into law by Mr. Trump in late December.
This was no doubt noticed by officials and monied interests elsewhere, sending a clear signal about how to interact with the U.S. government (at least until January 2029).
Steve Benen is a producer for “The Rachel Maddow Show,” the editor of MaddowBlog and an MS NOW political contributor. He’s also the bestselling author of “Ministry of Truth: Democracy, Reality, and the Republicans’ War on the Recent Past.”
The Dictatorship
Monday’s Campaign Round-Up, 4.20.26: Obama makes one last pitch ahead of Virginia race
Today’s installment of campaign-related news items from across the country.
* This week’s biggest election is in Virginia, where voters will decide whether to advance a Democratic redistricting effort. Ahead of Tuesday’s balloting, Barack Obama filmed one last pitch to the electorate in the commonwealth.
* With former Rep. Eric Swalwell out of California’s gubernatorial race, billionaire Tom Steyer is spending heavily to claim the front-runner slot. The Associated Press reported“Data compiled by advertising tracker AdImpact show Steyer has spent or booked over $115 million in ads for broadcast TV, cable and radio — nearly 30 times the amount of his nearest Democratic rival.”
* On a related note, the California Teachers Association, which had backed Swalwell, threw its support behind Steyer’s bid last week.
* When Donald Trump held an event in Nevada last week, many watched to see whether Joe Lombardo, the state’s Republican governor who is facing a tough re-election fight in the fall, appeared at the gathering. He did notthough Lt. Gov. Stavros Anthony spoke at the event.
* In Pennsylvania, Democratic Sen. John Fetterman isn’t up for re-election until 2028, but Punchbowl News asked every other Democratic member of the state’s congressional delegation whether the incumbent senator should run for a second term as a Democrat. Not one said he should.
* Jack Daly, a political operative who pleaded guilty in 2023 to defrauding thousands of conservative political donors, has lost some Republican clients of late, but the National Republican Senatorial Committee has continued to use the services of Daly’s firm.
* And in Tennessee, Republican Rep. Andy Ogles appears to be running for re-election, though his fundraising is badly lacking: As of the end of March, the far-right incumbent only had around $85,000 cash on handwhich lags his GOP primary opponent, former Tennessee Agriculture Commissioner Charlie Hatcher, who has around $150,000 in his campaign account.
Steve Benen is a producer for “The Rachel Maddow Show,” the editor of MaddowBlog and an MS NOW political contributor. He’s also the bestselling author of “Ministry of Truth: Democracy, Reality, and the Republicans’ War on the Recent Past.”
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