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On Background Checks for Trump Appointees, The Magic Number Is “Four”

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Yesterday, Hugo Lowell reported that Trump wants to bypass FBI background checks until he has gutted the FBI.

Trump officials to receive immediate clearances and easier FBI vetting
Exclusive: president-elect’s team planning for background checks to occur only after administration takes over bureau

Donald Trump’s transition team is planning for all political appointees to receive sweeping security clearances on the first day and only face FBI background checks after the incoming administration takes over the bureau and its own officials are installed in key positions, according to people familiar with the matter.

The move appears to mean that Trump’s team will continue to skirt FBI vetting and may not receive classified briefings until Trump is sworn in on 20 January and unilaterally grant sweeping security clearances across the administration.

Trump’s team has regarded the FBI background check process with contempt for months, a product of their deep distrust of the bureau ever since officials turned over transition records to the Russia investigation during the first Trump presidency, the people said.

But delaying FBI vetting could also bring ancillary PR benefits for the Trump team if some political appointees run into problems during a background check, which could upend their Senate confirmation process, or if they struggle to obtain security clearances once in the White House.

In the days before this story, as I laid out here, up to five Senators have spoken with various degrees of fortitude in support of requiring FBI background checks before confirming any Trump appointee. Lisa Murkowski did so in an Alaskan interview. Then the Hill quoted four Senators at least expressing support for background checks, with Susan Collins, Kevin Cramer, and Mike Rounds joining Murkowski in questioning the value of a private firm’s review as opposed to the FBI’s.

“The FBI should do the background checks, in my judgement,” said Sen. Susan Collins (Maine), who serves as the ranking Republican on the Senate Appropriations Subcommittee on Defense and as a senior member of the Senate Intelligence Committee.

Sen. Kevin Cramer (R-N.D.), a member of the Senate Armed Services Committee, argued that the FBI has access to information gathered by law enforcement on the federal, state and local levels that private firms don’t.

“If you wanted to supplement it with a private firm, I’d say OK. But the FBI does have access to information that probably a private firm wouldn’t have, even a really good savvy one,” he said.

Cramer said a private firm could help the FBI in its background investigations, but he “sure wouldn’t leave it” entirely outside the FBI’s hands.

[snip — click through to see Murkowski’s comments]

Sen. Mike Rounds (R-S.D.) said not having the FBI conduct background checks for high-level nominees by the time Trump formally appoints them next year “would come under scrutiny at the congressional level.”

He said lawmakers “would want to know the validity of those individuals doing the background checks.”

“Just because the White House doesn’t request a background check out of the FBI wouldn’t then mean perhaps some committees might not ask for it,” he said.

A different Hill story, which focuses on Scott Caucus member Bill Hagerty scoffing at the value of background checks, also quotes Joni Ernst saying FBI checks would be “helpful,” at least for Pete Hegseth.

Other Senate Republicans, however, say the FBI should retain its leading role in conducting background checks, and Sen. Joni Ernst (R-Iowa), a member of the Armed Services Committee, says an FBI background check of Hegseth would be “helpful.”

I get that Susan Collins has a history of backing down from principles she claims to care about. I get that some of these statements are squishy. It is also true that right wingers are already targeting Murkowski’s more categorical statement as some kind of Deep State plot.

But even as the pressure on Murkowski ratchets up, those seeking to prevent the wholesale takeover of the government by conspiracy theorists need to understand that it will take more than journalism about the risks of entrusting the intelligence community to a woman who finds Bashar al-Assad persuasive and the largest military in the world to a guy slathered with white supremacist tattoos (though experts have pointed out that for some of these positions, a proper vetting would require further intelligence involving).

It requires convincing four Republicans in the Senate to insist on doing the bare minimum by requiring background checks. In a 53-47 Senate, any four Republican block of voters, joining the Democrats, would be enough to thwart Trump’s crazier plans.

Want proof that can work? After four Republicans (and then six) came out against Matt Gaetz’ nomination, Trump conceded he didn’t have and never would get the votes.

Realizing this — understanding that the Magic Number to guard against Trump’s crazier plans is four — makes things both easier, and harder. Easier, because we know that only a quarter of Senate Republicans (including Hagerty) will reflexively support everything Trump does, at least as measured by support for Rick Scott over one of the more institutionalist Senate Majority Leader candidates. And harder, because most of these people have a history of caving and Trump will bring a great deal of pressure on them to do so again.

But that’s no reason to cede the fight ahead of time. On the contrary, it’s all the more reason to spend the time, now, to call Republican Senators who might demand background checks — to call your Republican Senator — and insist that exercise at least that minimum level of due diligence for the most powerful positions in government.

Get used to that magic number, four. Because trying to persuade four-Senator blocks of Republicans to oppose something is one of the most obvious ways to protect the country.

Lindsey Graham, Chuck Grassley, and Mike Lee Exhibit Utter Ignorance about FBI Certification on FISA Applications

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Jim Comey’s testimony in Lindsey’s Graham’s purported investigation of FISA — by which Lindsey means using the Carter Page FISA application as a stand-in for the Russian investigation more generally while remaining silent about both DOJ IG findings that the problems identified with the Page application are true more generally, and about ongoing 702 abuses under Bill Barr and Chris Wray — just finished.

As a Comey hearing connoisseur, it wasn’t bad. Notably, he repeatedly refused to answer questions for which the presumptions were false.

But as a connoisseur of hearings on FISA and FBI oversight, it was an atrocity.

This hearing was meant to talk about the dangers of counterintelligence investigations that unfairly treat people as Russian agents, meaning Page. But by my count, on at least 19 occasions, Republicans raised the investigation into Christopher Steele’s primary subsource, Igor Danchenko, for being a suspected Russian Agent. The investigation lasted from 2009 to 2011. It used many of the same tactics used against Page, Mike Flynn, and Paul Manafort. While the FBI closed the investigation in 2011 because Danchenko left the country — meaning they never affirmatively decided he wasn’t a Russian spy — neither did they decide he was.

That makes Danchenko exactly like Carter Page, someone once suspected of and investigated over a period for being a Russian Agent, but about whom the investigation was inconclusive, with remaining unanswered questions.

If you believe in due process in this country, you treat Igor Danchenko exactly like you’d like Carter Page to be treated.

And Republicans — starting and ending with Lindsey Graham — over and over again — stated that Danchenko was a suspected Russian agent in 2016 (which is plausible but for which there is no evidence) and even, repeatedly, stated as fact that he was a Russian spy. Lindsey claimed at one point that “the Primary Subsource was a Russian agent.” He later called Danchenko, “Igor the Russian spy.”

Republicans today did everything they complain was done with Carter Page, but they did so in a public hearing.

Danchenko may very well have been still suspect in 2016; that may very well have been something to consider when vetting the dossier (though as Comey noted, it could either corroborate that Danchenko had the sources he claimed or raise concerns about Russian disinformation). That absolutely should have been a factor to raise concerns about Russian disinformation. But everything in the public record shows that Danchenko was, in 2016, in exactly the same status Page will be in 2022, someone against whom an inconclusive foreign agent investigation was closed years earlier.

Still worse, at a hearing in which Lindsey Graham and other Republican Senators claimed they wanted to fix the problems in the FISA process identified as part of the Carter Page application, one after another — including Graham, Chuck Grassley, Mike Lee, Josh Hawley, and Joni Ernst — betrayed utter ignorance about the role of the FBI Director’s certification in a FISA application.

By statute, the FBI Director (or National Security Advisor) certification requires a very limited set of information, basically explaining why the FBI wants to and can use a FISA warrant rather than a criminal warrant, because they believe the desired information in part pertains to a national security threat.

(6)a certification or certifications by the Assistant to the President for National Security Affairs, an executive branch official or officials designated by the President from among those executive officers employed in the area of national security or defense and appointed by the President with the advice and consent of the Senate, or the Deputy Director of the Federal Bureau of Investigation, if designated by the President as a certifying official–

(A)that the certifying official deems the information sought to be foreign intelligence information;

(B)that a significant purpose of the surveillance is to obtain foreign intelligence information;

(C)that such information cannot reasonably be obtained by normal investigative techniques;

(D)that designates the type of foreign intelligence information being sought according to the categories described in section 1801(e) of this title; and

(E)including a statement of the basis for the certification that—

(i)the information sought is the type of foreign intelligence information designated; and

(ii)such information cannot reasonably be obtained by normal investigative techniques;

Thanks to the declassification of the Carter Page FISA applications, we can see what the declaration Comey signed looked like. In 8 pages tracking the statutory requirement, it explains (in redacted language) what kind of foreign intelligence information FBI hoped to obtain from the FISA, and why normal investigative methods are not sufficient to achieve those objectives.

Not a shred of that declaration pertains to the underlying affidavit.

And Comey tried to alert people to this, over and over, in the hearing, stating that his certification was very limited, even while taking responsibility in the affidavit that he didn’t sign (and once, in response to a question from Lindsey, stating explicitly that he had not signed). Rather than asking him what his certification entailed and how he thought about that responsibility, Republican Senators entrusted with overseeing FISA insinuated over and over, falsely, that he should have known the underlying pieces of evidence used to obtain the FISA.

Maybe he should have. He frankly exhibited some awareness of what was in that.

But that’s not what the law requires. And if the Senate Judiciary Committee wants FBI Directors signing FISA applications to have that kind of granular awareness of case, they need to rewrite the law to mandate it.

Instead, they simply exhibited their utter lack of awareness of what FISA law requires.

Some of these Senators, notably Grassley, have been overseeing FISA for decades. Lindsey heads this committee. Mike Lee is easily among the Senators who is best informed about FISA. And yet none of them know — not even with a declassified application to read — what it is that the FBI Director certifies.

Mitch McConnell and Richard Burr’s Authoritarian Power Grab Fails

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Last night, Mitch McConnell dealt himself a humiliating defeat. As I correctly predicted a month before events played out, McConnell tried to create a panic that would permit him and Richard Burr to demand changes — including iMessage retention, among other things — to USA F-ReDux. That is, in fact, what Mitch attempted to do, as is evident from the authoritarian power grab Burr released around 8:30 last night (that is, technically after the Administration had already missed the FISA Court deadline to renew the dragnet).

Contrary to a lot of absolutely horrible reporting on Burr’s bill, it does not actually resemble USA F-ReDux.

As I laid out here, it would start by gutting ECPA, such that the FBI could resume using NSLs to do the bulky Internet collection that moved to Section 215 production in 2009.

It also vastly expanded the application of the call record function (which it very explicitly applied to electronic communications providers, meaning it would include all Internet production, though that is probably what USA F-ReDux does implicitly), such that it could be used against Americans for any counterterrorism or counterintelligence (which includes leaks and cybersecurity) function, and for foreigners (which would chain onto Americans) for any foreign intelligence purpose. The chaining function includes the same vague language from USA F-ReDux which, in the absence of the limiting language in the House Judiciary Committee bill report, probably lets the government chain on session identifying information (like location and cookies, but possibly even things like address books) to do pattern analysis on providers’ data. Plus, the bill might even permit the government to do this chaining in provider data, because it doesn’t define a key “permit access” term.

Burr’s bill applies EO 12333 minimization procedures (and notice), not the stronger Section 215 ones Congress mandated in 2006; while USA F-ReDux data will already be shared far more widely than it is now, this would ensure that no defendant ever gets to challenge this collection. It imposes a 3-year data retention mandate (which would be a significant new burden on both Verizon and Apple). It appears to flip the amicus provision on its head, such that if Verizon or Apple challenged retention or any other part of the program, the FISC could provide a lawyer for the tech companies and tell that lawyer to fight for retention. And in the piece de la resistance, the bill creates its very own Espionage Act imposing 10 year prison terms for anyone who reveals precisely what’s happening in this expanded querying function at providers.

It is, in short, the forced-deputization of the nation’s communications providers to conduct EO 12333 spying on Americans within America.

Had Mitch had his way, after both USA F-ReDux and his 2-month straight reauthorization failed to get cloture, he would have asked for a week extension, during which the House would have been forced to come back to work and accept — under threat of “going dark” — some of the things demanded in Burr’s bill.

It didn’t work out.

Sure, both USA F-ReDux (57-42) and the short-term reauthorization (45-54) failed cloture votes.

But as it was, USA F-ReDux had far more support than the short-term reauthorization. Both McConnell and Rand Paul voted against both, for very different reasons. The difference in the vote results, however, was that Joe Donnelly (D), Jeff Flake (R), Ron Johnson (R), James Lankford (R), Bill Nelson (D), Tim Scott (R), and Dan Sullivan (R) voted yes to both. McConnell’s preferred option didn’t even get a majority of the vote, because he lost a chunk of his members.

Then McConnell played the hand he believed would give himself and Burr leverage. The plan — as I stated — was to get a very short term reauthorization passed and in that period force through changes with the House (never mind that permitting that to happen might have cost Boehner his Speakership, that’s what McConnell and Burr had in mind).

First, McConnell asked for unanimous consent to pass an extension to June 8. (h/t joanneleon for making the clip) But Paul, reminding that this country’s founders opposed General Warrants and demanding 2 majority vote amendments, objected. McConnell then asked for a June 5 extension, to which Ron Wyden objected. McConnell asked for an extension to June 3. Martin Heinrich objected. McConnell asked for an extension to June 2. Paul objected.

McConnell’s bid failed. And he ultimately scheduled the Senate to return on Sunday afternoon, May 31.

By far the most likely outcome at this point is that enough Senators — likely candidates are Mark Kirk, Angus King, John McCain, Joni Ernst, or Susan Collins — flip their vote on USA F-ReDux, which will then be rushed to President Obama just hours before Section 215 (and with it, Lone Wolf and Roving Wiretaps) expires on June 1. But even that (because of when McConnell scheduled it) probably requires Paul to agree to an immediate vote.

But if not, it won’t be the immediate end of the world.

On this issue, too, the reporting has been horrible, even to almost universal misrepresentation of what Jim Comey said about the importance of expiring provisions — I’ve laid out what he really said and what it means here. Comey cares first and foremost about the other Section 215 uses, almost surely the bulky Internet collection that moved there in 2009. But those orders, because they’re tied to existing investigations (of presumably more focused subject than the standing counterterrorism investigation to justify the phone dragnet), they will be grand-fathered at least until whatever expiration date they have hits, if not longer. So FBI will be anxious to restore that authority (or move it back to NSLs as Burr’s bill would do), especially since unlike the phone dragnet, there aren’t other ways to get the data. But there’s some time left to do that.

Comey also said the Roving Wiretap is critical. I’m guessing that’s because they use it to target things like Tor relays. But if that’s the primary secretly redefined function, they likely have learned enough about the Tor relays they’re parked on to get individual warrants. And here, too, the FBI likely won’t have to detask until expiration days on these FISA orders come due.

As for the phone dragnet and the Lone Wolf? Those are less urgent, according to Comey.

Now, that might help the Republicans who want to jam through some of Burr’s demands, since most moderate reformers assume the phone dragnet is the most important function that expires. Except that McConnell and others have spent so long pretending that this is about a phone dragnet that in truth doesn’t really work, that skittish Republicans are likely to want to appear to do all they can to keep the phone dragnet afloat.

As I said, the most likely outcome is that a number of people flip their vote and help pass USA F-ReDux.

But as with last night’s “debate,” no one really knows for sure.

The Flake Effect

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As you no doubt know, Democrats got shellacked yesterday. Not only did they lose the Senate in spectacular fashion, but Jim and I are stuck with our shitty Republican governors. Locally, the GOP succeeded in term-limiting our Mayor who wins with 80% of the vote.

Steve Vladeck has a post considering how this will affect national security politics. I agree with his ultimate conclusion:

Thus, the real question that I think yesterday’s results raise for national security policy in the 114th Congress is not what this “genuine debate about how best to preserve constitutional values while protecting the Nation from terrorism” will look like, but rather whether the absence of such a debate (which seems increasingly likely) will indeed provoke courts to play the more aggressive role to which Justice Kennedy alluded.

But along the way, Vladeck makes a grave category error by suggesting that Ted Cruz is a libertarian.

Although the realignment thesis requires decent support from the wings of both parties, the consequences of yesterday’s results are to put the focus squarely on how libertarian Republicans approach national security policy–since theirs is the party in power in both chambers. With that in mind, consider Senator Ted Cruz’s fairly remarkable unwillingness to openly endorse Senator Mitch McConnell as majority leader. Whatever that portends with respect to the leadership race, it suggests at the very least that, on some issues, the more libertarian wing of the Republican party may not exactly fall into lockstep with the party’s more moderate elements. And while that was an intriguing enough phenomenon when Republicans only controlled the House, how that plays out when Republicans control both sides of the Capitol will be very interesting to watch.

Ted Cruz is a dangerous narcissistic authoritarian piggybacking on Tea Party popularity and amorphousness to advance his own career. He is not a libertarian.

There are, to be sure, some libertarian senators. Along with Mike Lee and Dean Heller, who get little notice, Rand Paul has learned how better to use Senate procedure to advance libertarian aims. (One piece of evidence that Cruz is not a libertarian is that both he and Paul appear to be running for President, making it clear they don’t have the same agenda.)

That said, one of the most interesting aspects of this election is that Paul did some real campaigning for authoritarian hack Pat Roberts, lending him his Tea Party cred.

Ted Cruz, however, was not out campaigning. Update: According to this, Cruz also campaigned for Roberts.

But the question of how having Cory Gardner and Joni Ernst in the Senate has little to do with their politics, in my opinion.

They have a lot more to do with the difference between Mitch McConnell and John Boehner.

John Boehner is an ineffective leader whose attempt to discipline his party ended up creating leaders who had little to lose.

Mitch McConnell is not an ineffective leader. He has long been able to demand discipline.

Perhaps the best indicator of that is what happened when Jeff Flake, who was superb on civil liberties in the House, moved to the Senate. He’s terrible on those issues now. Pretty much runs and hides in a corner, whimpering, when such issues come up. I’m not sure how Mitch did it, but he managed to neutralize someone who challenged GOP authoritarianism. Completely. I expect the same of Cory Gardner (though will be happy to be proven wrong).

In any case, I would be shocked if Mitch made the error of putting someone like Gardner (or Paul) in one of the at least 3 new Republican slots that will open up on the Intelligence Committee.

The story of the next two years will be about what Mitch — and his heavy discipline — wants to accomplish in the Senate, not about what a few libertarians or pseudo-libertarians want.