This Advisory lays out what an individual going through this process can expect.
Starting in January, the incoming Biden Administration will have to fill 4,000 political positions in the federal government. More than 1,000 of these positions—including cabinet secretaries and agency heads, deputy secretaries, assistant secretaries, and ambassadors—require Senate confirmation. Other positions in the White House or in departments and agencies are Presidential appointments without Senate confirmation. Candidates for all of these senior positions must submit to meticulous scrutiny of their professional, political, financial and personal backgrounds by Biden transition team or (after Biden takes office) White House officials before the President announces a nomination or appointment.
Although designed to avoid surprises, the transition team/White House review process can be unpredictable. The basic process for reviewing candidates is well-established, but each administration may vary the vetting requirements and can have different expectations of their nominees. Those requirements and expectations can change mid-process as new issues arise, political and legal sensitivities shift, and other nominees come under fire. One trend, however, has proven inevitable: with each new development, the list of questions for candidates grows longer.
In our roles in private practice and in government, we have counseled prospective political appointees and advised or participated in Senate confirmations (one of us as a US Senator and one of us as a Presidential nominee) during the last four administrations. We have found that candidates—at least for the most senior positions—who are counseled on the process and who receive legal advice from outside attorneys are better prepared to respond to the intrusive vetting process and avoid mistakes.
This Advisory summarizes the process for Presidential appointments, including the paperwork nominees must complete before appointment or nomination, the Senate confirmation process, and services that can be provided by outside counsel.
Step 1: The Paperwork Required
Before the inauguration, President Biden will announce certain senior White House appointments as well as his intent to nominate people to senior cabinet positions. The Biden transition team will vet candidates for these positions. The President will announce appointments and nominations to other senior positions after he takes office. At that point, the White House Counsel's Office and the Office of Presidential Personnel will oversee the vetting.
Prior to any presidential announcement, potential appointees will be required to complete numerous official government forms and informal questionnaires that allow government investigators, ethics officials, and transition team/White House nomination staff to assess the candidate's suitability for office. These forms and questionnaire typically include:
- Security Clearance Questionnaire and authorization to conduct a background check—SF 85 (for "non-sensitive" positions) or SF 86 (for national security positions). These questionnaires now must be completed online and are extremely detailed (the SF-86 is more than 120 pages). Government background investigators, often the FBI, will use these forms to conduct a background investigation, which will include interviews with friends and associates of the nominee. Both forms require disclosure of detailed information concerning citizenship, prior residential addresses and work history, education, military service, selective service registration and prior use of illegal drugs. The national security questionnaire is much more extensive and also requests information regarding family members, foreign contacts, foreign financial interests, foreign travel, police records, mental health care, alcohol use and past financial difficulties.
- Public financial disclosure report—OGE Form 278. The Office of Government Ethics (OGE)—which is the independent agency responsible for administering executive branch ethics policies—uses this form to identify actual or potential conflicts of interest. The form, which will become available to the public (potentially even on the Internet) after a nominee takes office, requires disclosure of the nominee's financial assets, income, liabilities, asset transactions, gifts or reimbursements, arrangements and sources of compensation. The nominee must also disclose certain financial information relating to her or his spouse and dependent children. In the event there are actual or potential conflicts, the candidate can negotiate with OGE and the candidate's prospective agency or department to craft appropriate protections against such conflicts, such as divestment of or a blind trust over the candidate's financial assets. Nominees are also likely to be asked to sign a separate contractual "ethics pledge" committing to refrain from lobbying the agency for which they have worked for a specified period after leaving government.
- White House questionnaire and associated documentation. In addition to the official government forms, prior administrations have required candidates to complete a questionnaire with detailed information regarding their professional and personal background, memberships, prior writings, speeches, testimony, financial and tax information (including tax returns) and legal and administrative proceedings. These questionnaires vary from administration to administration. Nominees are likely to be asked if they have employed any undocumented aliens and paid all taxes, including for household employees, such as nannies and housekeepers.
- List of federal political contributions. For ambassadorial positions, the nominee must provide a list of all federal political contributions by the nominee and her/his immediate family.
In addition to reviewing the forms and questionnaires, transition team/White House officials typically will conduct a search for public information concerning the candidate, including anything (such as social media posts) that may embarrass the administration or the candidate or otherwise generate controversy. Depending on the position, the nomination staff (usually a White House lawyer) may interview the candidate. Also, depending again on the position and unless the dangers of premature disclosure of the potential appointment dictate increased confidentiality, the nomination staff may interview others associated with the candidate.
After the candidate is approved by the transition team or White House "clearance counsel" and ultimately by President-elect Biden, the transition team or Office of Presidential Personnel will announce the appointment (for positions not requiring Senate confirmation) or the nomination (for positions that must be approved by the Senate).
Step 2: Senate Confirmation Process
For Presidential appointments requiring Senate confirmation, after nomination by the President, the White House transmits the nomination to the Senate, which then takes the following steps:
- Committee process. The Senate will refer each nomination to a committee with relevant jurisdiction over the appointment (e.g., the Senate Foreign Relations Committee for Ambassadors and State Department positions, the Finance Committee for Treasury positions, the Senate Armed Services Committee for Department of Defense positions).
- Meetings with senators and staff. Depending on the seniority of the position or public profile of the candidate, senators and/or committee staff may want to meet with the nominee prior to a confirmation hearing and may ask the nominee about policy positions or background issues. The nominee must prepare carefully for each such meeting to address different concerns raised by each senator and his/her staff, including regarding the nominee's policy perspectives, past statements, and relevant background.
- Senate questionnaire. Many Senate committees have their own questionnaires for the confirmation process. The transition team/White House questionnaire likely includes most of the questions in the committee's version, but information may need to be reorganized and answers restructured or expanded upon to ensure that the candidate sufficiently answers each question posed by the Senate.
- Confirmation hearing and vote. Generally, the committee will have a public hearing on the nomination at which time the nominee will testify and answer questions. The nominee will need to prepare a short written and oral statement and must carefully prepare before testifying. Depending on the position, the committee may consider several nominees during one hearing. The committee also may hear from other individuals supporting or opposing the nomination. After the hearing, individual senators may send the candidate written questions for the record. The committee then will vote on whether to send the nomination to the full Senate.
- Floor debate and vote. If the committee votes out the nomination, it will go to the full Senate for consideration. Cabinet-level officials and nominees with controversial backgrounds will receive a recorded vote, while many lower-ranking officials may be approved by unanimous consent without debate.
Advice of Counsel for Nominees
Experienced counsel can assist a potential nominee with several aspects of the process, including answering accurately the background and disclosure forms, navigating the ethics requirements, testifying in the Senate, and preparing to respond to any negative information.
Assistance with disclosure forms. The mandatory disclosure forms can be arcane, burdensome and perilous. Counsel can help the candidate determine how best to respond to the extensive and detailed questions about a candidate's personal and professional background and can review the disclosures prior to submission to ensure that they are complete and accurate. False or incomplete statements (for example, about past drug use or criminal convictions) will disqualify a nominee and can subject the nominee to criminal prosecution.
Advising on OGE's ethics rules, negotiating with OGE and structuring divestitures if necessary: Candidates with substantial personal wealth or complex finances may need assistance interpreting and complying with conflict of interest rules. It also may take a significant amount of time to collect the detailed financial information required—for example, tracing through hedge funds and other tiered investments to identify underlying business holdings. Generally, political appointees must divest interests that may conflict with their duties, although blind trusts may sometimes suffice. The timing and circumstances of such divestitures or other arrangements can have significant tax and financial consequences. Counsel can assist in negotiating and structuring any such divestitures or trust arrangements to mitigate the impact.
Counsel for the Senate confirmation process. For nominations requiring Senate confirmation, a candidate must be prepared to submit written and oral statements, and to answer questions posed at the confirmation hearing and during any meetings with senators and their staff. A nominee should be prepared to navigate these inquiries and respond to any concerns raised about a nominee's background, policy positions, and past statements or actions.
Review and assessment of any adverse information. For positions requiring Senate confirmation (and potentially for other senior presidential appointments), the candidate may want to conduct, or ask counsel to conduct, "opposition research" to identify information on the public record that could become public after an appointment or after nomination but before a confirmation hearing. Social media posts and even college newspaper articles or yearbook quotations can cause problems for a nominee. This opposition research should be thorough, because—between the administration's nomination staff and Senate committee staff and political opponents—everything that can be found probably will be, at least for more senior nominees. The review also should examine the candidate from all angles, covering issues that may be objectionable not only to foes, but to allies as well. Items that once seemed innocuous can take on a different tone in the context of the partisan confirmation process. In the current political environment, it is prudent to assume that some opponent may distort or take out of context innocent but perhaps exploitable statements or actions by the candidate. A review can identify and allow the candidate to prepare to counter any such counterfeit vulnerabilities.
If this vetting identifies any relevant issues, the candidate can assess how best to address them, which could include remedial tax filings, pre-emptive disclosures, outreach or other actions. Further, by participating in mock interviews or hearings, the candidate can prepare to discuss the issues candidly and persuasively.
Many individuals make enormous personal and financial sacrifices to go into public service. In the current political atmosphere, unfortunately, they also subject their backgrounds to intense public scrutiny and can put their reputations at risk. Working with counsel experienced with the vetting process can help minimize these risks and enable prospective nominees and appointees to reduce the burdens and intrusions.
The authors are lawyers in the Washington, DC, office of Arnold & Porter. John Bellinger served as the Senate-confirmed Legal Adviser for the Department of State in the George W. Bush Administration and co-founded Republican National Security Officials for Biden. Christopher Dodd served as a member of the US Senate from 1981 to 2011. Amy Jeffress served as a senior official in the Department of Justice in the Obama Administration. Jim Joseph is the co-chair of the firm's tax practice. Rob Weiner served in the White House Counsel's Office in the Clinton Administration and Associate Deputy Attorney General in the Obama Administration.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.