Presidential Nominees and Foreign Influence: Mitigating National Security Risks

Note from the Editor: This article describes the procedures involved in determining whether to grant security clearances to presidential appointees, and argues that the Senate confirmation process is not the proper venue for security vetting. The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. Whenever we publish an article that advocates for a particular position, as here, we offer links to other perspectives on the issue, including ones opposed to the position taken in the article; those can be found on this page under "related content." We also invite responses from our readers. To join the debate, please email us at [email protected].

 

Should a businessman with overseas interests and connections be barred from serving in the federal government? Should a policy expert with relatives in other countries be excluded from presidential appointment shortlists? What legal standards apply to such determinations, how are they applied, and by whom? Do current laws and investigative norms protect the American public from appointees whose overseas entanglements risk subjecting them to coercion or manipulation by foreign adversaries?

Questions like these raise what the national security community calls “foreign influence” concerns. Although it is worthy of careful consideration, the risk of foreign influence is often entirely mitigatable using standards promulgated under President Bill Clinton and in use government-wide since that time. The process of applying those standards is overseen by career government officials whose tenure transcends both Republican and Democratic administrations, and who have proven in the past their willingness to defend their prerogatives, even against the White House.[1] Their security determinations about a nominee can ultimately be overridden by the President, yet history provides no known precedent for such an action, and likely for good reason. The political fallout for any President would be catastrophic after the inevitable media leak.

Foreign entanglements are uniquely matters of national security, as opposed to matters of nominee suitability, a distinction discussed below. These national security matters are best resolved by the nation’s security apparatus—which functions within the Executive Branch—and the extensive background investigation to which all presidential nominees submit before being granted security clearances.[2] The Supreme Court weighed in on this issue in a little-known 1988 case—Department of the Navy v. Egan. In Egan, the Court held that security clearance decisions were exclusively the purview of the Executive Branch[3] and reaffirmed “the generally accepted view that foreign policy was the province and responsibility of the Executive.”[4] Although the case arose as one of statutory construction, the Court apparently recognized that it had serious constitutional implications and, in an extraordinarily broad opinion, raised those matters sua sponte.

Over the past three decades, neither Republican nor Democratic Congresses have seen fit to legislatively neutralize Egan; it remains unclear whether such an effort would be an unconstitutional infringement on the President’s Commander-in-Chief or appointment powers. Notwithstanding the absence of legislative action, however, some Senators are now attempting to override the spirit of Egan by purporting to condition their approval of key presidential nominees on issues like foreign influence that are fundamentally personnel security determinations.[5] The result is a blurring of the line between the Senate’s constitutional “advice and consent” authority and the deference granted to the Executive Branch on matters of national security.

Below, I explore the framework of the security clearance process; why, despite certain flaws, it generally works; and how presidential nominees with overseas entanglements can obtain security clearances using the legal standards established by President Clinton. I also argue that the Senate’s constitutional “advice and consent” authority with respect to nominees is appropriately limited by Egan to questions of nominee suitability instead of national security.

I. The Federal Government’s Background Investigation System

A. Investigation

Processing for any prospective security clearance holder begins with the completion of Standard Form (SF) 86, the Questionnaire for National Security Positions.[6] The 127-page document, and the in-person questioning by federal agents that accompanies it, covers almost every conceivable issue pertaining to applicant judgment, reliability, and honesty. This includes some areas—such as substance abuse, dishonesty, and criminal history—covered in the general pre-employment suitability screenings that federal employers undertake by law apart from any security clearance investigations.[7] But it also includes numerous other areas like finances, blackmail potential, and misuse of information technology systems that are uniquely security concerns. Notably, security clearance investigations are designed to assess in great depth applicants’ overseas connections: friends, family, property, bank accounts, investments or other personal assets, and business entanglements of any kind.

White House staff members and presidential appointees or nominees typically complete additional, more invasive screening questionnaires and, in some cases, a polygraph examination. The FBI’s Special Inquiries Squad handles these cases and prepares comprehensive reports of investigation to present their findings to career adjudicators within the FBI and the Executive Office of the President’s (EOP) Office of Security.

To prepare their reports of investigation, investigators review intelligence and law enforcement databases; assess any suspicious financial transactions;[8] compare the current SF-86 to past submissions for discrepancies; query the applicant’s employers, colleagues, neighbors, associates, and friends; and interview the applicant at great length to further elucidate admitted issues or confront him or her with any areas of concern. Best practice is for investigators to develop their own sources of information, preventing the applicant from “guiding” the investigation by only providing references who will report positively about his or her attributes.

One of the most serious criticisms of the federal background investigation system is that it relies too much on applicant self-reporting.[9] In other words, government investigators only learn about certain issues if applicants choose to disclose them on the SF-86 form or during investigative interviews. There is merit in this argument, yet to-date little action has been taken to implement the recommendations of a 2014 presidential task force designed to examine the issue.[10] Fundamentally, the government has both a sword and a shield to combat falsified security clearance applications: prosecution under the federal false statements statute,[11] and cross-checking of information with human references and databases. The latter is only as effective as those performing the investigations, and many have raised concerns about the thoroughness and completeness of investigations undertaken by the nation’s primary background investigations service provider, the Office of Personnel Management’s National Background Investigations Bureau (OPM).[12] Once again, the criticisms do have merit; I have written previously about clear shortcomings in the federal background investigation process.[13] However, the general opinion within the personnel security community is that the FBI operates in a different league from the OPM. One of the chief reasons for this disparity in investigative quality likely stems from the difference in the two agency missions. The OPM is, at heart, a human resources functionary, while the FBI is primarily charged with building criminal cases.

Yet regardless of the shortcomings that plague the OPM and, to a much lesser extent, the FBI, it is doubtful that a Senate Committee hearing would achieve different results in borderline cases. After all, a nominee who lies to federal agents during a background investigation will have an added incentive—the specter of prosecution—to cover-up that lie during subsequent inquiries. The question is thus fundamentally which government body is best situated to ferret out and assess the relevancy of potential security issues: a panel of senators who may or may not have any familiarity with national security background investigations, or the federal law enforcement agency charged with detecting and apprehending foreign spies.

B. Adjudication

Once the investigative service provider (here, the FBI) has completed its investigation, a report of the investigation is compiled and forwarded to career adjudicators within that agency (and, in the case of presidential personnel, to the EOP Office of Security). The separation of investigative and adjudicative functions is an important feature that ensures quality control and helps defend against outside influences and other improprieties.

Adjudicators are required to review any concerns raised within the report under a regime of thirteen adjudicative guidelines titled “A” through “M.” These “National Adjudicative Guidelines for Security Clearances” were originally promulgated in 1995 at the direction of President Bill Clinton pursuant to Executive Order 12968. Each Guideline provides a series of facts and circumstances that, if present, raise security concerns. These are followed by a complementary set of facts and circumstances that could mitigate the concerns.

For example, under the Adjudicative Guidelines:

Foreign contacts and interests may be a security concern if the individual has divided loyalties or foreign financial interests, may be manipulated or induced to help a foreign person, group, organization, or government in a way that is not in U.S. interests, or is vulnerable to pressure or coercion by any foreign interest. Adjudication under this Guideline can and should consider the identity of the foreign country in which the foreign contact or financial interest is located, including, but not limited to, such considerations as whether the foreign country is known to target United States citizens to obtain protected information and/or is associated with a risk of terrorism.[14]

The government raises a prima facie case against granting a security clearance simply by alleging facts or circumstances that implicate one or more of the nine potentially disqualifying factors:

(a) contact with a foreign family member, business or professional associate, friend, or other person who is a citizen of or resident in a foreign country if that contact creates a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion;

(b) connections to a foreign person, group, government, or country that create a potential conflict of interest between the individual’s obligation to protect sensitive information or technology and the individual’s desire to help a foreign person, group, or country by providing that information;

(c) counterintelligence information, that may be classified, indicates that the individual’s access to protected information may involve unacceptable risk to national security;

(d) sharing living quarters with a person or persons, regardless of citizenship status, if that relationship creates a heightened risk of foreign inducement, manipulation, pressure, or coercion;

(e) a substantial business, financial, or property interest in a foreign country, or in any foreign-owned or foreign-operated business, which could subject the individual to heightened risk of foreign influence or exploitation;

(f) failure to report, when required, association with a foreign national;

(g) unauthorized association with a suspected or known agent, associate, or employee of a foreign intelligence service;

(h) indications that representatives or nationals from a foreign country are acting to increase the vulnerability of the individual to possible future exploitation, inducement, manipulation, pressure, or coercion;

(i) conduct, especially while traveling outside the U.S., which may make the individual vulnerable to exploitation, pressure, or coercion by a foreign person, group, government, or country.[15]

Once a prima facie case has been established, the burden of proof then shifts to the security clearance applicant to provide sufficient evidence of mitigation via one or more of the six mitigating factors:

(a) the nature of the relationships with foreign persons, the country in which these persons are located, or the positions or activities of those persons in that country are such that it is unlikely the individual will be placed in a position of having to choose between the interests of a foreign individual, group, organization, or government and the interests of the U.S.;

(b) there is no conflict of interest, either because the individual’s sense of loyalty or obligation to the foreign person, group, government, or country is so minimal, or the individual has such deep and longstanding relationships and loyalties in the U.S., that the individual can be expected to resolve any conflict of interest in favor of the U.S. interest;

(c) contact or communication with foreign citizens is so casual and infrequent that there is little likelihood that it could create a risk for foreign influence or exploitation;

(d) the foreign contacts and activities are on U.S. Government business or are approved by the cognizant security authority;

(e) the individual has promptly complied with existing agency requirements regarding the reporting of contacts, requests, or threats from persons, groups, or organizations from a foreign country;

(f) the value or routine nature of the foreign business, financial, or property interests is such that they are unlikely to result in a conflict and could not be used effectively to influence, manipulate, or pressure the individual.[16]

Over the past 20 years, foreign influence concerns have become commonly referred to as “B” issues, as a result of their placement in the Guidelines under that subsection. No particular country is currently “blacklisted” as a matter of policy, but, in practice, security clearance applicants with ties to certain countries—most commonly Russia, China, Iran, South Korea,[17] Israel,[18] and Cuba[19]—do receive additional scrutiny. Nonetheless, even ties to the most problematic countries can be fully mitigated given the right applicant and the right set of circumstances.

A security clearance applicant provides such mitigation first by responding in writing to a “Statement of Reasons” (SOR), the administrative equivalent of an indictment that informs an applicant of the government’s concerns. Pursuant to Executive Order 12968, security concerns, unless classified, must be pleaded by the government in the SOR with sufficient specificity as to adequately put the applicant on notice of the charges.[20] Much like discovery in an Article III court case, the government is required upon demand to provide an initially denied applicant with a complete copy of the government’s unclassified files for use in rebutting the charges. Depending upon the strength of the applicant’s rebuttal, initial unfavorable decisions can often be overturned simply by providing the government with appropriate mitigating context via written reply.

Subsequent procedures vary slightly among clearance-granting agencies, but all applicants are guaranteed a trial-type challenge before a federal Administrative Law Judge or Senior Security Adjudicator, followed, if necessary, by an appeal to a panel of senior agency officials commonly known as a Personnel Security Appeals Board.[21] Every applicant is entitled to appear personally and present his or her case at some point in the process, but agencies differ as to whether that right is granted at the hearing or appeal stage. Pursuant to Egan, an adverse agency determination is final and cannot be appealed to an Article III court.[22]

In foreign influence cases, there are a variety of ways in which initially denied applicants can address the government’s concerns and obtain a favorable final adjudication. For example, in cases involving foreign relatives or associates, applicants often highlight, where feasible, the lack of significant bonds of affection, obligation, or influence, then compare those relationships to those that the applicant maintains with his or her relatives or associates in the United States. For cases involving foreign business investments, property, or other financial entanglements, applicants work toward divestment or present detailed accountings of their broader financial picture in order to put the value of the overseas assets in perspective. In cases of unsavory prior conduct while traveling abroad, applicants can offer an assessment—often with the assistance of an expert witness psychologist—of the likelihood that the conduct is known to a hostile foreign intelligence service and the extent to which it could realistically be used against the applicant for blackmail purposes.

No matter the type of foreign influence concerns, the goal in a successful defense is to provide strong evidence that whatever ties the applicant has abroad could not be leveraged against him or her by foreign actors in a way that would be inimical to the interests of national security. That can be challenging when close relatives live in a hostile foreign country or a substantial portion of the applicant’s finances are tied up in a particular country and thus subject to the dominion of that government.

But for prominent titans of industry, law, and policy—the very types of people so often nominated for service in a presidential administration—there are a variety of ways in which foreign influence concerns can be effectively and ethically neutralized. The wealthier the individual, the less likely overseas business interests are considered a coercion concern insofar as they are small pieces of a very large financial picture. The deeper the individual’s roots are in the United States, the more zealously he or she will likely resist espionage efforts by foreign associates. And an individual with holdings and contacts spread across multiple countries is less of a security risk than someone with investments or relationships concentrated in a single nation.

These are not mere hypotheticals; countless high profile individuals from the private sector successfully navigate the security clearance process every year. Those in the American defense and aerospace sectors are the most obvious examples because they need security clearances to perform their jobs. Yet the fact remains that, ultimately, “[n]o one has a ‘right’ to a security clearance. The grant of a clearance requires an affirmative act of discretion on the part of the granting official. The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’”[23] Given the subject matter expertise of federal personnel security officials, their proven willingness to protect their prerogatives even against the White House,[24] the intensity of the scrutiny directed at presidential nominees, and the substantial ties most presidential nominees have in the United States, there is little risk that a favorably cleared nominee poses any risk of foreign influence, much less a national security risk in general.

II. Egan and the Original Understanding of “Advice and Consent”

The framework of the national security landscape described above is significantly reinforced by the Egan precedent. To understand the importance of Egan, it is important to understand the historical context of the Senate’s “advice and consent” function, which forms the outer bounds of the Senate’s authority to reject nominees. A plain reading of the Appointments Clause text finds nothing to limit what the Senate may consider in assessing a nominee.[25] Some Senators, including then-Senator Joseph Biden, have used the Constitution’s silence to claim limitless authority to reject presidential nominees for any reason, including broad concerns about national security or ideology.[26] The Senate’s procedural rules are silent on the matter.[27] However, the responsible exercise of power requires a fundamental understanding of its basis in law, as determined by the fairly understood meaning of words at the time the law was promulgated.[28] Therefore, a review of the Framers’ original understanding of the advice and consent power is crucial to understanding how the Senate should exercise that power in considering nominees today.

Alexander Hamilton addresses this issue in Federalist No. 76; there, he describes the understanding of the Senate’s advice and consent role as “an excellent check upon a spirit of favoritism in the President, [which] would tend greatly to preventing the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.”[29] Hamilton goes on to explain that:

Out of a concern for both reputation and re-election, 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.”[30]

According to one scholar, “[t]he thrust of Hamilton’s discussion is [thus] to suggest that the great desideratum regarding the appointment power is to secure ‘merit’ by resisting temptations to geographic partiality (especially state) and personal partiality.”[31]

To be fair, not all contemporaneous interpretations of “advice and consent” agreed with Hamilton’s. Another Framer, George Mason, described his understanding of the advice and consent power more broadly:

I am decidedly of opinion, that the Words of the Constitution . . . give the Senate the Power of interfering in every part of the Subject, except the Right of nominating . . . . The Word ‘Advice’ here clearly relates in the Judgment of the Senate on the Expediency, or the Inexpediency of the Measure, or Appointment; and the Word ‘Consent’ to their Approbation or Disapprobation of the Person nominated; otherwise the word Advice has no Meaning at all—and it is a well-known Rule of Construction, that no Clause or Expression shall be deemed superfluous or nugatory, which is capable of a fair and rational Meaning. The Nomination, of Course, brings the Subject fully under the Consideration of the Senate; who have then a Right to decide upon its Propriety or Impropriety. The peculiar Character or Predicament of the Senate in the Constitution of the General Government, is a strong Confirmation of this Construction.[32]

Nonetheless, juxtaposed against Egan, the absence of any reference to national security considerations is stark; like Hamilton, Mason understood “advice and consent” to deal with issues of merit, competency, and character—factors most aptly described as suitability concerns.

The term “suitability” is defined at 5 C.F.R. § 731 for the purpose of federal civil service hiring.[33] The provisions of § 731 set forth a number of discrete factors a federal agency should consider in making hiring judgments—including criminal or dishonest conduct, material, intentional false statements in the appointment process, and any recent substance abuse—ultimately leading to the determination of whether a particular appointment would adversely impact the efficiency or integrity of the federal service. These considerations are independent of, albeit sometimes overlapping with, security investigations. Certainly, the discretion of the Senate is broader is evaluating presidential nominees, but § 731, combined with the Constitution’s Article I, Section 6, Clause 2 (commonly referred to as the “Incompatibility Clause”), is a useful guidepost for the Senate in wielding its advice and consent authority in the manner intended by the Framers.

Such guideposts are particularly important in tempering senatorial overreach given that the President’s national security authority is granted by the Constitution, not Congress. The Supreme Court articulated this in Egan, finding that the President’s:

[A]uthority to classify and control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position in the Executive Branch that will give that person access to such information flows primarily from [the] constitutional investment of power in the President [as Commander in Chief of the Armed Forces], and exists quite apart from any explicit congressional grant.[34]

Because the Framers did not understand the advice and consent function to encompass a determination of whether nominees were security-worthy, and because the Constitution counsels deference to the President in national security matters, the Senate’s nominee inquiries should be limited to matters of merit, competency, character, and, arguably, ideology. This is the most rational and efficient outcome: “[t]he attempt to define not only the [appointee’s] future actions but those of outside and unknown influences renders the ‘grant or denial of security clearances . . . an inexact science at best.’”[35] It is not reasonably possible for an outside nonexpert body to review the substance of such judgments and second-guess the decisions of career personnel security experts.[36]

III. Conclusion

All presidential nominees deserve scrutiny, and the Senate is constitutionally mandated to apply it. But both the separation of powers and the efficient administration of government require that nominee security-worthiness be vetted and adjudicated by national security experts within the executive branch. Moreover, in the case of foreign influence concerns, potential national security risks can be mitigated in a variety of ways, including reasonable divestment or diversification of assets, responsible compliance with reporting obligations, and a showing of overwhelming U.S. obligations and allegiance. The relative wealth, education, and sophistication that most presidential nominees possess renders them quite well-positioned to mitigate national security risk.

 

Suggested citation: Sean M. Bigley, Presidential Nominees and Foreign Influence: Mitigating National Security Risks, 18 Fed. Soc'y Rev. 36 (2017).