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A Primer On The Presidential Appointee Vetting Process

will make. Accordingly, it is critical for anyone considering an appointed

position to understand the presidential appointment vetting process from

the start.

The rewards of public service as a high-level presidential appointee include

the opportunity to serve one’s country, pursue important policy goals, and

help shape events. In order to serve as a presidential appointee, however,

candidates must first successfully navigate two complex political processes:

nomination by the president and (for those positions that require it)

confirmation by the United States Senate. Both processes entail extensive

significant changes overall.

This article provides a high-level overview of the presidential appointee

vetting process, as it has existed to date, including changes that have

appeared in the recent past. In addition, we address the top five vetting

priorities that potential appointees should consider before entering the

rigorous process.

Vetting Process Overview

potential nominee: tax records, prior writings, responses to detailed questionnaires covering a wide

range of topics, and financial disclosure forms. The White House also will conduct a search of public

records, social media posts, and other materials posted on the internet. The depth of the review may

depend on the seniority of the proposed position. After the White House nominates an individual, if the

full background check and other vetting prerequisites to a formal nomination by the president. The

clearance bar for this expedited “mini-vet” was lower than the requirements for final nomination.

Accordingly, advance notice of the intended appointment ran the risk of exposing candidates to

embarrassing publicity during the course of the vetting process.

Between now and Inauguration Day, we will see how the Trump transition team handles early

nomination decisions. Because of the pressure to fill key positions as quickly as possible, we may soon

start seeing names of those candidates the administration “intends to nominate” after President-elect

Donald Trump is sworn in. Regardless of the transition team’s specific procedures before the

inauguration, or the new White House’s process after it, candidates who obtain legal advice regarding

following top five major vetting issues during the early stages of their candidacy.

1. Tax Issues

Taxes are often the central vetting issue for many nominees. This focus likely will not diminish much,

despite the tax controversies that arose during the recent campaign. Candidates should anticipate

careful scrutiny by the transition team, the eventual White House, and certainly the Senate of a wide

range of tax obligations, including federal, state and local income taxes, household employee taxes

(nannies, housekeepers and landscapers), and gift taxes. Candidates should be prepared to pay any back

taxes owed to federal, state or local governments, and to explain their reasons for nonpayment. Senate

annual basis. This report, which nominees must file in draft form with the pertinent federal agency and

the White House ethics counsel during the vetting process, is scrutinized by vetters to discern and

resolve any conflicts of interest posed by potential public service. As a general rule, presidential

appointees must divest themselves of any financial holdings and other interests that may conflict with

their duties as a presidential appointee. (This rule is not legally binding on the president and vice

president, however). For nominees with substantial personal wealth or business interests, this may

present significant challenges and require careful analysis. Recent guidance has loosened the treatment

of hedge fund or other pooled investment fund holdings, but much depends on the specific facts of the

investment products themselves.

3. Litigation, Investigations and Other Legal Proceedings

nomination than civil litigation, the significance of civil proceedings should not be underestimated. As a

general rule, litigation or similar proceedings that are relevant to the duties of the potential appointee

receive heightened scrutiny. For example, financial litigation or penalties are especially important if the

nominee is slotted for a Treasury Department or other financial industry regulatory position.

Employment discrimination or civil rights litigation is especially relevant to a civil rights enforcement

position. Military draft issues and security breaches are especially problematic if the candidate is being

considered by the White House or Senate for a defense-related position.

By contrast, domestic and personal conduct proceedings are relevant to all nominees. Judgments or

allegations regarding delinquent child support or alimony payments, domestic violence or drug abuse,

4. Publications and Organizational Affiliations

Candidates are required to identify all published writings, significant speeches or panel presentations,

and organizational positions and affiliations on extensive written questionnaires. It is critical that a

nominee disclose any potentially controversial writings or affiliations early on in the vetting process.

Political watchdog organizations closely monitor writings and affiliations in order to obtain evidence of

public policy positions and personal beliefs; a candidate’s "paper trail" on controversial issues is likely to

garner attention. However, careful management of a nominee’s controversial public positions —

including preemptive outreach to special interest groups, the solicitation of bipartisan endorsements,

and strategic public relations efforts — may avert or minimize unwanted attention. Active and informed

where a candidate’s medical history includes serious or chronic health conditions. Investigators who

conduct personal background checks routinely seek information from neighbors, family members and

professional contacts regarding any evidence of drug or alcohol abuse, or other medical conditions that

might impede a candidate’s ability to serve or might compromise the interests of the United States.

Mental health counseling for bereavement, marital issues or other life circumstances is no longer

subjected to extensive scrutiny. A spouse's or partner’s medical history may be relevant to certain

positions, such as ambassadorial posts. Absent a special circumstance, however, the mental and physical

health of a candidate’s children or other family members is generally outside the scope of the vetting

inquiry.

information purposes and is not intended to be and should not be taken as legal advice.

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