On Thursday, America First Legal (AFL) released a new report showing how the FBI has weaponized the federal background investigation process to help Democratic presidents and to deny Republican Presidents, specifically President Trump, the ability to appoint the political leadership they want. Based on findings uncovered from AFL’s investigation of the Biden Administration’s vetting of judicial nominees, the Report also explains how the broken process was used to smear Justice Kavanaugh during his confirmation hearings.
During the Trump Administration, the FBI conducted Background Investigations (BI) of candidates for presidential appointment while repeatedly violating the Privacy Act and the Paperwork Reduction Act, among other laws. In this way, politically biased agents in the Washington, D.C. field office tanked potential appointees by selectively reporting unsubstantiated, derogatory information while disregarding the mitigation procedures required by the FBI’s Manual of Investigative Operations and Guidelines (MIOG).
During the Biden Administration, opportunities to thwart compliance with laws have been magnified because the Office of Legal Policy at the Department of Justice rescinded regulations designed to protect individuals subject to the BI process, reopening the abuse that occurred when President Clinton accessed information about his political enemies during “Filegate.”
In the report, AFL lays out a litany of findings reflecting an institution-wide violation by the FBI of the Privacy Act, the Paperwork Reduction Act, the Freedom of Information Act, and the applicable FBI MIOG.
America First Legal’s FOIA litigation exposed that despite the rhetoric, the Privacy Act’s requirements were not enforced to protect judicial nominee BIs. These requirements included:
- 5 U.S.C. § 552a(e)(6): Specific nominee consent before disclosure to the Senate/publication in the Federal Register that such disclosure is a “routine use”
- 5 U.S.C. § 552a(e)(6): FBI must “assure that such records are accurate, complete, timely, and relevant for agency purposes,” which means irrelevant hearsay, unverified or anonymous allegations must be subject to mitigation or excluded.
- 5 U.S.C. §§ 552a(e)(2): FBI must ensure all derogatory or potentially derogatory information is subject to mitigation by collecting information directly from the potential nominee.
AFL submitted the report to the Chairmen of the Senate and House Judiciary and Oversight committees in an effort to assist the committee in its oversight and reform efforts concerning the FBI.
Statement from Gene Hamilton, America First Legal Vice President and General Counsel:
“The will of the American people is thwarted when the deep state interferes with the nominations process established in the Constitution and laws of the United States. The President deserves to have the Senate give proper advice and consent to his nominees, but the manner in which the background investigation process has worked has deprived the President–and in turn, the American people–of that right. This report highlights the need for reform and how gamesmanship behind the scenes can interfere with our constitutional order,“ said Gene Hamilton.
Read the report here.