How Bad are Trump's Nominees? Ask Carla F.

An insider look at the FBI's secret sauce for conducting background checks, and why Trump hates it.

I’m am co-publishing my notes for CAFE Insider right here on my Substack, so you can get them immediately! Listen to this note and get insights from myself and other legal experts by following The Counsel Podcast from CAFE.

---

Dear Reader,
 
A Christian nationalist who was flagged by the National Guard as an “insider threat” for Secretary of Defense. An anti-vaxxer for Secretary of Health and Human Services. A Russian sympathizer for the Director of National Intelligence. No, this isn’t Bizarro World, this is real life. And perhaps the only thing more troubling than the actual cabinet nominees by the incoming Trump administration is that it looks like none of them will undergo a traditional FBI background check before their Senate hearings. Instead, the vetting will be outsourced to private entities. Senator Bill Hagerty (R-TN), argued that Americans “don’t care” who conducts background checks for the cabinet picks. But if they don’t, they should, because it’s unlikely that any private investigation will be as thorough as the FBI’s, or searching for the same kinds of risks.

A background check for a government position—especially one that might include access to sensitive information—involves more than just running fingerprints against a police database. As anyone who has undergone a thorough background check knows, it involves filling out a lengthy form, called an SF-86, disclosing all of the places you’ve ever lived and worked and traveled, background information on close relatives, and any significant foreign contacts. You also include references for the FBI to speak with. Importantly, these references are just starting points—leads—for the FBI. When the FBI speaks to these people, they will ask them for the names of a couple of other people they should speak with. Then they follow up with those folks, ask for more leads, and so on. Interviews continue in an ever-expanding circle until the FBI is satisfied that it has developed a comprehensive picture of the subject’s life. But there is one person who is omnipresent in every FBI background check, and a part of every interview.

Let me introduce you to Carla F. Bad. OK, so “Carla” isn’t a real person, but a mnemonic that the FBI uses to make sure agents cover all their bases when they conduct interviews during a background check. Her name stands for: character; associates; reputation; loyalty; ability; finances; bias; alcohol/addictions; and drugs. Systematically going through these topics with every interviewee allows the FBI to gather enough information to make a final adjudication on whether the subject is “suitable” or “unsuitable” for a position of public trust. Problems in any one of these areas not only raise questions about the subject’s ability to execute the job in an ethical manner, but also present national security risks because they indicate vulnerabilities that can be exploited by foreign adversaries. Let’s go through some of the questions an agent might ask with Carla’s help:

CHARACTER. I’ll never forget sitting down to take my polygraph test for the Bureau, and having Special Agent Ron Barndollar (I just love his name so had to mention it) pull up a chair, get three inches from my face, look me straight in the eye, and say, “Character is what you do when you think no one is looking.” (At the time, I was convinced he had just watched me jaywalk across Church Street so I wouldn’t be late to my appointment.) I’ve never forgotten his definition. On this point, an agent will ask about a subject’s honesty, reliability, and ethics. Has the interviewee ever had occasion to question the subject’s integrity, or judgment?

ASSOCIATES. Birds of a feather flock together. An agent will ask here, What kind of people does the subject spend time with, personally, and professionally? What sorts of activities do they engage in together? Do they seem unscrupulous, or trustworthy?

REPUTATION. Although Iago said that reputation is “oft got without merit and lost without deserving,” how someone is known in the community can tell you a lot about them. An agent will ask how a subject is regarded among their neighbors, in their religious community, or among their professional peers. Is the person confrontational and litigious, or collaborative and helpful? Do people seek this person out for advice? Are they known for following through on their commitments?

LOYALTY. I used to wonder about the kind of people who would get “jammed up” (that’s Bureau-speak) on this question—it seemed far-fetched that they would be the same kind of people who’d be applying for a government position. But, here we are. What agents ask here is whether you have any reason to question the subject’s loyalty to America. Has the subject ever talked about overthrowing the government of the United States, or been sympathetic with those who have? Have they ever participated in efforts to prevent government officials from performing their duties? Ahem.

ABILITY. It’s really up to the people hiring to determine whether a person can do the job, but an agent will get an interviewee’s thoughts, based on their own knowledge and experience, on whether they think the subject is qualified for the position they are seeking. For instance, I’ve been interviewed for background checks for friends of mine who have been nominated for judgeships. As a lawyer and member of the legal profession, I’ve been asked whether I think they’d make a good judge, and why.

FINANCES. Hoo boy. This one is a biggie. Money is one of the easiest ways for adversaries to compromise people with access to sensitive information, so any issues that surface on this front can be a problem. Based on the ODNI’s 2015 Annual Report on Security Clearance Determinations, after suspicious foreign contacts, financial issues are the factor most likely to trip up a security clearance. (It appears that the ODNI stopped breaking out this data in subsequent reports.) What agents most want to know here is, Does the subject have financial problems, or are they overly fixated on money? Are they in significant debt? Alternatively, have they suddenly come into unexplained affluence?

BIAS. Here is another one that would, ordinarily, raise a lot of red flags if it were answered in the affirmative. Needless to say, the principle of equality under the law means that public servants need to be able to serve everyone without bias towards individuals due to their race, religion, national origin, or any other personal characteristic. Agents here will ask whether the subject has ever expressed any prejudice or animosity towards particular groups of people. Is the subject affiliated with any extremist groups?

ALCOHOL/ADDICTIONS. This used to be just “alcohol” but “addictions” was added a while back as other behaviors—like gambling and sex and porn—began to be treated as compulsive disorders. The agent here will want to know if the interviewee knows of any addictions or has observed the subject engage in behavior that interferes with their ability to function professionally and socially.

DRUGS. Yes, drugs get their own category! And yes, marijuana counts! (Remember, pot is still illegal under federal law.) The government has evolved from its zero-tolerance drug policy to one that considers the type of drug, the frequency and recency of drug use, and the circumstances surrounding the use. But doing drugs is generally no bueno in a federal clearance process. The agent will basically ask the interviewee if they know whether the subject currently uses or has used any illegal drug.

You’ll notice that some of these categories overlap with the others. And to be clear, one person saying bad things on any of these topics to the FBI during a background check won’t tank their candidacy. Rather, the FBI is looking for patterns to emerge when it comes to “derogatory”—that is, questionable or unfavorable—information. The FBI’s Adjudicatory Desk Reference lists three qualities, in particular, that tend to correlate with trustworthiness, reliability, and not presenting a security risk: “1) a strong sense of social responsibility; 2) self-control, or the ability to exercise responsible and rational control over one’s impulses; and 3) the ability to maintain personal or job commitments over time.” By contrast, information that reveals “a recent or recurring pattern of questionable judgment, irresponsibility, or emotionally unstable behavior” is not someone the FBI would recommend placing in a position of public trust. Who knew.

So, Trump isn’t going to let the FBI vet his candidates. But now you can do the math yourself. Take each person Trump has nominated and put them up against Carla F. Bad. It will probably become very clear very quickly why the Trump administration doesn’t want an FBI background check anywhere near them.

Stay Informed,
 
Asha