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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: JGR/FBI
(Federal Bureau of Investigation) (1 of 3)
Box: 25
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
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Contact a reference archivist at: [email protected]
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file: F.B.I. -
THE WHITE HOUSE
WASHINGTON
June 24, 1983
NOTE FOR JOHN G. ROBERTS
PETER J. RUSTHOVEN
FROM:
RICHARD A. HAUSER
RAD
Please review Section IV of the attached
draft report and provide your comments
to Sherrie Cooksey as soon as possible.
Thank you.
Attachment
U.S. Department of Justice
Office of the Deputy Attorney General
Associate Deputy Attorney General
Washington, D.C. 20530
June 17, 1983
MEMORANDUM FOR: Departmental Study Committee
on Special Inquiries on
Presidential Nominees
FROM: Stanley E. Morris
Chairman
SUBJECT: Final Draft of SPIN Report
Attached for your review is the final draft of the
Committee's Report to the Attorney General.
Also included at the front of the report is a draft of
the transmittal letter to the Attorney General. In the next
few days, we will be circulating the original of the letter
for your signature.
I would like to release the report as soon as possible,
certainly no later than the end of June. Therefore, I would
ask that you provide your comments to me or Bob Foley (272-6269)
no later than Wednesday, June 22.
Finally, I would appreciate your suggestions on what the
Committee's recommendations should be to the Attorney General
and Director Webster regarding the ultimate release of the
report to the Congress, the press, and the public.
Attachment
U.S. Department of Justice
-
Departmental Study Committee:
Special Inquiries On
Presidential Nominees
Report to
The Attorney General
DRAFT
June 198
U.S. Department of Justice
Office of the Deputy Attorney General
Associate Deputy Attorney General
Washington, D.C. 20530
Honorable William French Smith
The Attorney General
Washington, D.C. 20530
Dear Mr. Attorney General:
The Departmental Study Committee on Special Inquiries on
Presidential Nominees is pleased to submit its report and recom-
mendations to you. Upon request of Director Webster, you
asked that we examine the nature of the Special Inquiry (SPIN)
process, identify any problems associated with that process,
and suggest solutions.
The Committee believes that a brief explanation of the
delay in our submission to you is in order. As you are aware,
the Special Counsel of the Senate Committee on Labor and Human
Resources finally released his report on the Federal Bureau of
Investigation's (FBI) disclosures in the Donovan matter on
April 22, 1983. We postponed completion of the report
anticipating that the Special Counsel's report might raise
certain facts or issues that would have a bearing on our findings
and recommendations. As it turned out, however, it did not
contribute anything of significance to our effort. In that
light, the release of this report at this time should enhance
its significance and usefulness.
A major finding of the report--one that applies equally to
the SPIN process within the Executive Branch and to the issue
of Congressional access--is that many of the criticisms and
misperceptions associated with SPIN have arisen because agree-
ments and understandings have been made on an informal or
ad hoc basis. Generally, there has been an absence of formal,
written documents governing SPIN policies and procedures.
Therefore, our recommendations focus on the need for better
understanding, such as an Executive Order, to govern more
clearly the SPIN process and to clarify relationships and
responsibilities both within the Executive Branch and between
the Executive Branch and the Senate.
-2-
The Committee's recommendations set forth formally the
authority of the President and his Counsel and the role of the
FBI in the SPIN process. Specific recommendations in this
area focus not only on means by which the Department of Justice
and the FBI can assist their White House clients in this process,
but also on measures the White House can take which, through
clearer guidance and more specific tasking, should permit the
FBI's conduct of SPIN investigations to be even more responsive
to the needs of the President.
The recommendations addressing Congressional relations
attempt to strike a balance between the legal authority of the
President in making nominations and the requirements of the
Senate in carrying out its advise-and-consent responsibilities.
The recommendations, if implemented, would provide both the
Executive Branch and the Senate with a clearer understanding
of their respective rights and obligations concerning access
to SPIN information, as well as clarify the FBI's responsibility
NONE
vis-a-vis the Senate.
We appreciate the opportunity to have served you in the
review of this important issue. Should you approve any of our
specific recommendations, we stand ready to assist in their
implementation.
Respectfully submitted,
Stanley E. Morris
Chairman
Theodore B. Olson
Oliver B. Revell
F. Henry Habicht II
William P. Tyson
John B. Hotis
Renee L. Szybala
DEPARTMENTAL STUDY COMMITTEE:
SPECIAL INQUIRIES ON PRESIDENTIAL NOMINEES
* * *
REPORT TO THE ATTORNEY GENERAL
June 1983
Committee Members:
Stanley E. Morris, Chairman
Associate Deputy Attorney General
Theodore B. Olson
Assistant Attorney General
Office of Legal Counsel
William P. Tyson
Director
Executive Office for U.S. Attorneys
Renee L. Szybala
Deputy Associate Attorney General
F. Henry Habicht II
Deputy Assistant Attorney General
Land and Natural Resources Division
John B. Hotis
Special Assistant to the Director
Federal Bureau of Investigation
Oliver B. Revell
Assistant Director
Criminal Investigative Division
Federal Bureau of Investigation
TABLE OF CONTENTS
Page
INTRODUCTION AND OVERVIEW
1
SECTION I:
CONSTITUTIONAL AND LEGAL ANALYSIS
3
Constitutional Background Regarding the
Presidential Appointments Process
3
Checks and Balances and Separation of Powers
3
The Appointments Clause
5
Disclosure of Executive Branch Background Checks
to the Public and to Congress
8
Public Disclosure
8
Disclosure to Congress
9
SECTION II:
PURPOSE AND PROCEDURES OF SPECIAL INQUIRY INVESTIGATIONS
17
Purpose
17
Workload and Resource Allocation
17
Administrative Process
18
Investigative Process
19
Summarization Process
21
SECTION III:
HISTORICAL BACKGROUND
22
White House Requests for Background Investigations
22
Distribution Within the Executive Branch
23
Furnishing Reports to Congress
24
White House Appointees
24
Departmental Applicants
27
Attempts to Further Formalize Procedures
32
SECTION IV:
THE RELATIONSHIP BETWEEN THE WHITE HOUSE AND THE FBI,
AND THE WHITE HOUSE AND THE SENATE
34
Relationship Between the White House and the FBI
34
Relationship Between the White House and the Senate
37
SECTION V:
CONCLUSIONS AND RECOMMENDATIONS
41
Page
APPENDIX A: Study Charter: Exchange of Correspondence between
Attorney General Smith and Director Webster
A-1: Director Webster's Letter of June 22, 1982
A-2: Attorney General Smith's Letter of June 25, 1982
APPENDIX B: FBI Background Investigations Conducted at the
Request of the White House: Scope and Areas of
Coverage
APPENDIX C: Relevant Sections of FBI Manual of Investigative
Operations and Guidelines
C-1: Section 17 of FBI Manual, "Applicant and
Employee Investigations Conducted for Other
Government Agencies - General Instructions"
C-2: Section 161, "Special Inquiries for
White House, Congressional Committee, and
Other Government Agencies"
APPENDIX D: Unpromulgated Guidelines, "White House Personnel
Security and Background Investigations"
APPENDIX E: Memorandum of Understanding Between President-elect
Reagan and Attorney General Civiletti
INTRODUCTION AND OVERVIEW
The Federal Bureau of Investigation (FBI) is charged with the responsibility
for conducting background investigations of numerous categories of applicants
for Federal employment and employees of a number of Federal agencies. Since
the end of World War II, this responsibility has included background investiga-
tions of candidates for nomination for Presidential appointments. An
investigation carried out by the FBI in response to such requests from the
White House, termed "Special Inquiry" (SPIN), has essentially followed--albeit
with a heightened urgency--the same procedures as the standardized full-field
background investigation. Historically, considering the thousands of SPIN
investigations conducted for incoming Administrations, this procedure has
been an effective and useful one, serving the task of clearing nominees for
high office in the United States Government. In rare instances, an exceptional
event has occurred concerning a particular candidate for nomination or an
appointee which gives visibility to, and generates publicity about, that
background investigation in particular or the procedures followed in general.
On June 25, 1982, Attorney General William French Smith, at the suggestion
of FBI Director William H. Webster, established a Departmental Study Committee
on Special Inquiries on Presidential Nominees. Director Webster's proposal
was, in part, stimulated by "changing perceptions of the nature of a Special
Inquiry (SPIN) on Presidential Nominees and the need for a reexamination of
the purpose and procedures under which such inquiries take place, as well
as "the obligations and scope of disclosure." (Appendix A-1) He asked
for the Attorney General's guidance and direction and suggested that a
Departmental committee review the SPIN process.
Attorney General Smith asked the Committee to assist him and Director
Webster "in clarifying the issues and in finding solutions for any problems
that may exist." (Appendix A-2) This report is in response to that request.
The Committee has chosen to postpone submission of the final report
until now in deference to the Committee on Labor and Human Resources of the
United States Senate. In May 1983, the Special Counsel of the Senate Committee
issued his Report on "The Timeliness and Completeness of the Federal Bureau
of Investigation's Disclosures to the United States Senate in the Confirmation
of Labor Secretary Raymond J. Donovan.' Having reviewed that document,
however, the Committee has determined that the Special Counsel's Report does
not add significantly to the breadth and scope of the present reexamination
of SPINs. Therefore, the timing of this Report to the Attorney General
should increase its usefulness and interest to the Senate and other interested
parties.
Our response to the Attorney General has been extremely broad in scope
for two principal reasons. First, in order to analyze the purpose and expec-
tations regarding SPIN inquiries, the Committee addressed historical, legal
and procedural issues. Second, a full understanding of the process required
1
an analysis of the relationships and expectations both within and between
the Executive and Legislative Branches. Because of these interbranch consid-
erations, a review of related constitutional and legal issues was also
required.
The Committee's goal, then, has been to outline the roles and responsi-
bilities of the President, the White House staff, the Department of Justice,
the FBI, and the Congress in the nominating process, and particularly the
SPIN process, and to develop recommendations which may help to improve it.
The Committee has turned to a number of sources to address these issues.
Committee inquiries have included review and analysis of legal and constitu-
tional authorities, historical documents and official correspondence, examin-
ation of Congressional testimony and committee reports, and interviews with
knowledgeable officials--present and former-of the Department of Justice
and the FBI. To obtain a clearer view of the White House perspective, the
Committee also interviewed present and past members of White House staffs
who had responsibility for reviewing applicants for Presidential nominations.
The report is outlined as follows: Section I gives the constitutional
background of the Presidential appointment process. Section II describes
the purpose of, and procedures followed in, SPIN investigations. Section III
is a historical discussion of SPIN investigations. Section IV analyzes the
roles of the Executive Branch and the Congress, with emphasis on the White
House-FBI relationship and problems of disclosure and access. The final
Section contains the Committee's conclusions and recommendations.
In brief, the Committee's recommendations are designed both to increase
the understanding of the purpose and scope of SPIN investigations within and
between the White House and the Senate, and to improve the utility of the
process itself. We recommend a formalization of the procedures by means of
an Executive Order and Attorney General Guidelines. The Committee further
proposes that greater consideration be given to the time requirements for
SPIN investigations. As regards Congressional access, we recommend that each
Administration conclude a formal agreement with the Senate concerning the
provision of SPIN material, and that such an agreement stipulate that the
Senate obtain the information it requires directly from the White House.
2
SECTION I
CONSTITUTIONAL AND LEGAL ANALYSIS
Constitutional Background Regarding the
Presidential Appointment Process
Article II, § 2, cl. 2 of the Constitution sets out the appointment
power of the President, and the role which the Senate plays in the appointment
process. It provides that the President
shall nominate, and by and with the Advice and Consent
of the Senate, shall appoint Ambassadors, other public
Ministers and Consuls, Judges of the supreme Court, and
all other Officers of the United States, whose Appointments
are not herein otherwise provided for, and which shall
be established by Law: but the Congress may by Law vest
the Appointment of such inferior Officers, as they
think proper, in the President alone, in the Courts of
Law, or in the Heads of Departments.
The Appointments Clause represents an important manifestation of the
twin principles of checks and balances and separation of powers which underlie
the constitutional structure of our government. A discussion of this Clause
therefore must begin with a brief review of these principles.
Checks and Balances and Separation of Powers
It is fundamental to the constitutional structure that "the powers of
the three great branches of the National Government be largely separate from
one another." Buckley V. Valeo, 424 U.S. 1, 120 (1976). See United States
V. Nixon, 418 U.S. 683, 704 (1974); Humphrey's Executor V. United States,
295 U.S. 602, 629 (1935). As Madison declared:
The accumulation of all powers, legislative, executive,
and judiciary, in the same hands, whether of one, a
few, or many, and whether hereditary, self-appointed,
or elective, may justly be pronounced the very definition
of tyranny. Were the federal Constitution
...
chargeable with this accumulation of power, or with a
mixture of powers, having a dangerous tendency to such
an accumulation, no further arguments would be necessary
to inspire a universal reprobation of the system. 2/
The accumulation of power most feared by the Founders was that
residing in the Legislative Branch:
[I]n a representative republic where the executive magis-
tracy is carefully limited, both in the extent and the
duration of its power; and where the legislative power is
exercised by an assembly, which is inspired by a supposed
influence over the people with an intrepid confidence in
its own strength; which is sufficiently numerous to feel
all the passions which actuate a multitude, yet not so
3
numerous as to be incapable of persuing the objects of its
passions by means which reason prescribes; it is against
the enterprising ambition of this department that the people
ought to indulge all their jealousy and exhaust all their
precautions.3,
The debates at the Constitutional Convention repeatedly revealed concern
over the "tendency in our [state] governments to throw all power into the
Legislative vortex. The Executives of the States," Madison declared, "are
in general little more than Cyphers; the legislatures omnipotent.
In order to protect against legislative dominance in the new national
government, the President was given a number of exclusive powers, among
them, the power to negotiate with foreign nations;5 to pardon; to veto
congressional legislation; and to nominate and appoint all ambassadors,
judges, and "officers" of the United States. The Appointments Clause was
intended to play a key role in checking congressional power. As the Supreme
Court has noted:
An interim version of the [Appointments Clause] had vested
in the Senate the authority to appoint Ambassadors, public
Ministers, and Judges of the Supreme Court, and the language
of Art. II as finally adopted is a distinct change in this
regard. We believe that it was a deliberate change made by
the Framers with the intent to deny Congress any authority
itself to appoint those who were "Officers of the United
States.
As important as the independence of the Executive was to the Founders,
it is also obvious from the very structure of the Constitution that the
Founders did not intend any "hermetic sealing off of the three branches of
Government from one another"7/ that would preclude effective, coordinated
government on the one hand, or allow uncontrolled abuses on the other.
Instead, they incorporated a system of checks and balances into a tripartite
structure designed to prevent tyranny by any one branch over the others.
This policy of supplying, by opposite and rival interests,
the defect of better motives, might be traced through the
whole system of human affairs, private as well as public.
We see it particularly displayed in all the subordinate
distributions of power, where the constant aim is to divide
and arrange the several offices in such a manner as that
each may be a check on the other -- that the private interests
of every individual may be a centinel over the public rights.
These inventions of prudence cannot be less requisite in
the distribution of the supreme powers of the State.8/
This system of checks and balances is not inconsistent with the principle
of separation of powers; rather, the two concepts complement each other. As
one scholar has observed: "An institution cannot check unless it has some
measure of independence; it cannot retain that independence without the
4
power to check. "9/ Together the principles of checks and balances and
separation of powers guard against tyranny by limiting the ability of any
branch of government to govern without approval -- tacit or otherwise --
of the other branches whose natural interests are distinct from its own.
The Founders were also sensitive to the danger that a government of
diffused powers could be stymied at every turn, thereby frustrating the
dreams they had for the new nation. Indeed, the instability and incompetence
of a weak national government was the fundamental motivation underlying the
abandonment of the Articles of Confederation in favor of the new Contitution.
As Madison wrote, "[e]nergy in government is essential to that security
against external and internal danger and to that prompt and salutary execution
of the laws which enter into the very definition of good government. "11/
To achieve energy and efficiency in a government with separated powers and
checks and balances, however, requires public officials to act with moderation
and respect not only for the constitutional role of the coordinate branches,
but for the "larger purposes of government. "12/
While the Constitution diffuses power the better to secure
liberty, it also contemplates that practice will integrate
the dispersed powers into a workable government. It enjoins
upon its branches separateness but interdependence, autonomy
but reciprocity.]
The lesson to be gleaned from this brief review of the constitutional
principles underlying the appointments process is that Congress and the
Executive must exercise their prerogatives with sensitivity to the mutual
dependence each has upon the other in promoting the general welfare of the
nation.
The Appointments Clause
Except for officers of the Congress, 14/ all "Officers of the United
States" are appointed to their positions in one of the four ways specified
by the Appointments Clause: 15/ by the President "by and with the advice and
consent of the Senate;' by the President alone; by a federal court; or by
"Heads of Departments. "16/
All officers who are not deemed "inferior," as that term is used in the
Clause, must be appointed by means of the first-mentioned process. That
process consists of three stages: (1) the nomination of a candidate by the
President; (2) the advice and consent of the Senate to the candidate's appoint-
ment; and (3) the nominee's appointment and commission by the President. 17/
Our focus is upon the first and second stages of the process. In the first
(and third) stage the Constitution vests power exclusively in the President;
in the second stage, the Senate shares in the appointment power by granting
or withholding its consent. 18/
5
It has been the consistent view of the Attorneys General that the Senate
plays no role in the first stage of the appointment process, viz., the nomination
of a candidate by the President.
The Senate has no power to originate an appointment; its
constitutional action is confined to a simple affirmation
or rejection of the President's nomination. Whenever the
Senate disagrees to such nomination, it fails; and no appoint-
ment can be made, except on a new nomination to be made by
the President. Suggestions as to the views of the Senate
in cases where that body disagrees to the President's nomina-
tion, may, no doubt, be informally communicated to him; but
should he think it proper to conform to those views, I know
of no way in which it can be done, consistently with
the constitution, except by the making of a new nomination
in accordance therewith.
This view is supported not only by the opinion of the Founders20/, but also
by Supreme Court precedent21/ and historical practice.
The President's exclusive role in nominating all executive officers of
the United States was affirmed in Buckley V. Valeo, 424 U.S. 1 (1976), where
the Supreme Court held that appointment by the President pro tempore of the
Senate and the Speaker of the House of a majority of the voting members of
the Federal Election Commission violated the Appointments Clause. The Court
described the history of the drafting of the Appointments Clause and found
that "all officers of the United States are to be appointed in accordance
with the Clause. "23/ The Court went on to hold that a governmental body
comprising members not selected pursuant to the Appointments Clause may not
exercise executive functions:
The [Federal Election] Commission's enforcement power,
exemplified by its discretionary power to seek judicial
relief, is authority that cannot possibly be regarded as
merely in aid of the legislative function of Congress. A
lawsuit is the ultimate remedy for a breach of the law, and
it is to the President, and not to the Congress, that the
Constitution entrusts the responsibility to "take Care that
the Laws be faithfully executed." Art. II, § 3.
Congress may undoubtedly under the Necessary and Proper
Clause create "offices" in the generic sense and provide
such method of appointment to those "offices" as it chooses.
But Congress' power under that Clause is inevitably bounded
by the express language of [the Appointments Clause], and
unless the method it provides comports with the latter, the
holders of those offices will not be "Officers of the United
States. They may, therefore, properly perform duties only
in aid of those functions that Congress may carry out by
itself, or in the area sufficiently removed from the adminis-
tration and enforcement of the public law as to permit
their being performed by persons not "Officers of the United
States. "24/
6
Notwithstanding the President's exclusive authority to nominate all
officers of the United States, Congress has on numerous occasions formally
limited the President's discretion by specifying detailed qualifications
for officers of the United States pursuant to its exclusive constitutional
power to create "inferior" offices. As Edward Corwin has noted:
First and last, legislation
has laid down a vast
variety of qualifications, depending on citizenship, residence,
professional attainments, occupational experience, age,
race, property, sound habits, political, industrial, or
regional affiliations, and so on and so forth. It has even
confined the President's selection to a small number of
persons to be named by others. Indeed, it has contrived at
times, by particularity of description, to designate a
definite eligible [sic], thereby, to all intents and purposes,
usurping the appointing power. [Nevertheless, the proposition
is universally conceded that some choice, however small,
must left the appointing authority. 26/
Presidents and Attorneys General27/ have steadfastly resisted these
legislative attempts to restrict the President's discretion to choose nominees.
President James Monroe, for example, took what is perhaps the extreme position
that, as "a general principle,"
Congress [has] no right under the Constitution to impose any
restraint by law on the power granted to the President so
as to prevent his making a free selection of proper persons
for these [newly created] offices from the whole body of
his fellow citizens.28
Notwithstanding Monroe's views, however, the law seems settled that although
the President's power of nomination is exclusive, it may be regulated by
Congress through reasonable statutory specifications regarding qualifications
for office.
Within these formal specifications regarding the appointment process,
there exists a complex set of practical accommodations between the Congress
and the Executive which has evolved, largely without judicial interference,
from the sparse dictates of Art. II, $2.30/ The Senate may not dictate any
particular choice to the President, but neither can the President grant a
commission to any "officer of the United States" without the consent of the
Senate. Because the constitutional arrangement so clearly contemplates a
spirit of accommodation and cooperation between the Legislative and Executive
Branches, the policies governing the President's submission of nominations
to the Senate and the scope of the background information which will be
provided must take account of the very real "balance of power" which governs
the appointment process.
7
In discussing that process, the Founders repeatedly used terms such as
"cooperation, = "jointly," "junction
...
of power, and "concurrent
authority. "31/ Alexander Hamilton, for example, emphasized the twin benefits
of Presidential nomination and Senate confirmation in The Federalist No. 76:
one man of discernment is better fitted to analyze and
estimate the peculiar qualities adapted to particular offices
than a body of men of equal or perhaps even superior discern-
ment. The sole and undivided responsibility of one man
will naturally beget a livelier sense of duty and a more
exact regard to reputation. He will, on this account, feel
himself under stronger obligations, and more interested to
investigate with care the qualities requisite to the stations
to be filled, and to prefer with impartiality the persons
who may have the fairest pretentions to them.
On the other hand, he wrote:
the necessity of [Senate] concurrence would have a powerful,
though, in general, a silent operation. It would be an
excellent check upon a spirit of favoritism in the President,
and would tend greatly to prevent the appointment of unfit
characters from State prejudice, from family connection,
from personal attachment, or from a view to popularity.
Hamilton believed that "co-operation" between the President and the Senate
would result in an optimal mechanism for the appointment of government
officials. Such "co-operation" represents the keystone of the constitutional
structure of the Appointments Clause.
Disclosure of Executive Branch Background
Checks to the Public and to Congress
Public Disclosure
Sensitive FBI background checks of presidential nominees are shielded
from public disclosure by the Privacy Act, 5 U.S.C. § 552a(b), and are exempt
from disclosure under the Freedom of Information Act ("FOIA"), 5 U.S.C.
§ 552 (b) (5), (b) (6), (b)(7).32/ Material gleaned through background investi-
gations is particularly sensitive from a privacy standpoint because, unlike
other investigations conducted by the FBI, they are conducted without any
basis for belief that criminal activity will be discovered. Indeed, a back-
ground check is usually undertaken with respect to someone who has been
recommended to the President as possessing qualities of leadership and character
which support a reasonable expectation that no criminal activity will be
uncovered. Because the Government normally has no legitimate interest in
performing such investigations into a citizen's private life, information
thus obtained is entitled to the most diligent protection.
8
Disclosure to Congress 33/
The principle of cooperation which underlies the entire constitutional
process of appointment is particularly important in the context of information
disclosure. Whenever Congress requests disclosure from the Executive of
sensitive, confidential background information during the appointment process,
vital interests of both Branches must be carefully considered and accommodated.
Over the years the Executive has voluntarily provided appropriate Senate
committees with substantial summary information gleaned from background
investigations on presidential nominees. Such disclosures, however, have
not been unlimited, and have been made consistent with the Executive's interest
in protecting the confidentiality of certain information.
There are two bases for declining to release certain SPIN information
to Congress: the need to protect law enforcement processes; and the need to
protect the privacy of those nominees under investigation, and those from
whom information is obtained respecting nominees. In a litigation context
these interests have traditionally received protection through the informant's
privilege34/ and the investigative files privilege.3 The informant's
privilege is designed to protect those who provide sensitive information to
law enforcement officers, and to encourage others to provide such information.3
It traditionally extends to protect statements made to the the Government in
return for a pledge of confidentiality 37/ Such statements often represent
an essential feature of SPIN-type investigations.3 The investigative
files privilege similarly protects the integrity of law enforcement processes
by encouraging a free flow of information to law enforcement officers, by
protecting the rights of individuals under investigation, and by shielding
enforcement techniques from disclosure to violators who could use such
information to avoid apprehension.
These privileges of confidentiality have been applied by analogy to
requests from Congress for certain investigatory materials. In 40 Op.
A.G. 45, 46 (1941), Attorney General Robert Jackson declared:
It is the position of this Department, restated now with
the approval of and at the direction of the President, that
all investigative reports are confidential documents of the
executive department of the Government, to aid in the duty
laid upon the President by the Constitution to "take care
that the laws be faithfully executed," and that congressional
or public access to them would not be in the public interest.
Attorney General Jackson went on to emphasize the twin interests served by
protecting the confidentiality of FBI investigative reports:
[D]isclosure of [such] reports would be of serious
prejudice to the future usefulness of the Federal Bureau of
Investigation. [M]uch of this information is given
in confidence and can only be obtained upon pledge not to
disclose its sources. A disclosure of the sources would
embarrass informants -- sometimes in their employment,
sometimes in their social relations, and in extreme cases
9
might even endanger their lives. We regard the keeping of
faith with confidential informants as an indispensible
condition of future efficiency.
Disclosure of information contained in the reports might
also be the grossest kind of injustice to innocent individuals.
Investigative reports include leads and suspicions, and
sometimes even the statements of malicious or misinformed
people. Even though later and more complete reports exonerate
the individuals, the use of particular or selected reports
might constitute the grossest injustice, and we all know
that a correction never catches up with an accusation.
The Attorney General concluded by noting that he was "following the conclusions
reached by a long line of distinguished predecessors in this office who have
uniformly taken the same view. "41/
Of course, Congress also has important interests at stake which must be
considered and balanced against those of the Executive Branch. It is firmly
established that decisions by the Executive not to supply information to
Congress require a balancing of the public interests at stake in disclosure,
on the one hand, and confidentiality on the other. In the leading Supreme
Court case treating the power of the President to protect certain information
from disclosure to the coordinate Branches, United States V. Nixon, 418 U.S.
683, 708 (1974), the Court held that there existed an Executive privilege
which was "fundamental to the operation of Government and inextricably rooted
in the separation of powers under the Constitution." The Court declined,
however, to hold that the privilege was absolute in the case of confidential
deliberative communications.4 Instead, it viewed its task as a balancing
process:
In this case we must weigh the importance of the general
privilege of confidentiality of Presidential communications
in performance of the President's responsibilities against
the inroads of such a privilege on the fair administration
of criminal justice.
Id. at 711-12. On the particular facts of the case before it, the Court
held that the President's "generalized interest in confidentiality" did not
outweigh the need for the "production of relevant evidence in a criminal
proceeding." Id. at 713.
United States V. Nixon involved a claim of Executive privilege in the
context of a court proceeding, but the analysis is similar when Executive
privilege is asserted in response to congressional demands for information.
Although Presidents throughout our history have from time to time declined
to provide information to Congress, there is only one judicial decision
directly on point. 43/ That decision upheld the President's claim of Executive
privilege against releasing deliberative communications to a Congressional
committee.
10
In the context of the appointment process, it is unlikely that the
President would be compelled formally to assert Executive privilege in
response to a Senate subpoena for information about one of his nominees. 44/
Nevertheless, the balancing process which the courts use to evaluate claims
of Executive privilege is appropriately used here to resolve the conflicting
interests of the Executive Branch and the Senate. The Senate, after all,
does possess a textually explicit constitutional duty to provide "advice and
consent" to the President in his choice of nominees for federal offices.
This duty may be said to imply a concomitant power to obtain relevant infor-
mation on the nominee to assist the Senate in "the responsible fulfillment
of [its] function. "45/ In balancing the Senate's need for information
against the interest of the Executive Branch in maintaining the confidentiality
of its investigative reports, the President may choose to follow either of
two courses: (1) he may refuse to disclose some, or all, investigative
material compiled to assist him in selecting nominees; or (2) he may arrange
for the disclosure of relevant information concerning his nominees, under
terms which safeguard the interests of the Executive Branch.
The first option is legally supportable, but may present practical
problems. After describing the privilege generally applicable to sensitive
investigative files, a former Assistant Attorney General for the Office of
Legal Counsel stated:
We believe that an argument can be made that investigative
reports compiled in aid of the President's constitutional
power to nominate and appoint officers of the United States
are protected by a similar privilege -- although the privilege
would be difficult to assert as a practical matter because
it would always be possible for the Senate or a Committee
to refuse to pass on a particular nomination unless the
relevant FBI materials were made available. Nevertheless,
reference to the confidentiality normally accorded investigative
reports compiled in aid of the President's constitutional
duties may properly serve as a basis for discouraging Senate
access to the reports as a matter of course.
A far better alternative would be to seek a mutually satisfactory
accommodation with the Senate through which relevant material necessary for
the fulfillment of the advice and consent function would be provided to the
Senate, under conditions which secure the confidentiality of all sensitive
information. Such an agreement could be embodied in an Executive Order, in a
resolution of the Senate, or in a written understanding between the President
and appropriate Senate leaders and committee chairmen.
The two Branches of Government must agree upon a sensible accommodation
of their legitimate and occasionally competing interests. It will undoubtedly
be less difficult to agree upon general principles than upon the implementation
of those principles. Both Branches are likely to agree, for example, that
the Senate should have the relevant information regarding an appointee.
Precisely what may be "relevant," and how that information should be transmitted
and retained, may prove to be more difficult to resolve.
11
FOOTNOTES
1/ The Constitution provides no role for the House of Representatives in
the appointment process. Congress as a whole, however, possesses exclusive
authority under the Necessary and Proper Clause to establish or abolish
those offices to which persons may be appointed by the President. United
States V. Maurice, 26 F. Cas. 1211 (1823) (No. 15,747); 18 Op. A.G. 171
(1890); 10 Op. A.G. 11 (1861); 5 Op. A.G. 88 (1849).
2/ The Federalist, No. 47.
3/ The Federalist, No. 48.
4/ 2 Max Farrand, ed., The Records of the Federal Convention of 1787, at
35 (1937); see also 1 id. at 107 (James Wilson); 2 id. at 52 (Governeur
Morris); 2 id. at 298 (John Mercer).
5/ See generally United States V. Curtiss-Wright Export Corp., 299 U.S.
304, 319-20 (1936).
6/ Buckley V. Valeo, supra, 424 U.S. at 129.
71 Id. at 121.
8/ The Federalist, No. 51.
9/ L. Fisher, The Politics of Shared Power: Congress and the Executive
4 (1981).
10/ See e.g., The Federalist, Nos. 1, 15, 16, 21, 22, 38.
11/ The Federalist, No. 37.
12/ Fisher, supra, at 12.
13/ Youngstown Sheet & Tube Co. V. Sawyer, 343 U.S. 579, 635 (1952)
(Jackson, J., concurring). See also R. Neustadt, Presidential Power
33 (1960):
The constitutional convention of 1787 is supposed to have
created a government of "separated powers It did nothing
of the sort. Rather, it created a government of separated
institutions sharing powers. [Original emphasis.
14/ See generally Buckley V. Valeo, supra, 424 U.S. at 127-28.
15/ U.S. Const. Art. II, § 2, cl. 2. Whether a person is an "officer"
rather than an "employee" of the United States depends on the nature of
the office he fills, not on the method of his appointment. See generally
United States V. Germaine, 99 U.S. 508 (1879); Auffmordt V. Hedden, 137
U.S. 310, 327 (1890).
12
16/ See United States V. Smith, 124 U.S. 525, 532 (1888).
17/ See generally Marbury V. Madison, 5 U.S. (1 Cranch) 137, 155-56 (1803):
They [the clauses of the Constitution] seem to contemplate
three distinct operations: 1st. The nomination. This is the
sole act of the President, and is completely voluntary. 2d.
The appointment. This is also the act of the President, and
is also a voluntary act, though it can only be performed by
and with the advice and consent of the Senate. 3d. The
Commission. To grant a Commission to a person appointed,
might, perhaps, be deemed a duty enjoined by the Constitution.
"He shall,' says that instrument, "commission all the officers
of the United States."
18/ See generally 3 J. Story, Commentaries on the Constitution of the
United States § 1525 (1833); Matter of Hennen, 38 U.S. (13 Pet.) 230,
259 (1839); Marbury V. Madison, supra note 17.
19/ 3 Op. A.G. 188 (1837).
20/ See 5 Works of Thomas Jefferson 161-62 (P. Ford ed. 1904); 9 Writings
of James Madison 111-13 (G. Hunt ed. 1910); see also 3 J. Story,
Commentaries on the Constitution of the United States §§ 1525-26 (1833).
21/ See Springer V. Philippine Islands, 277 U.S. 189, 202 (1928) (the legislative
branch may not exercise executive authority by retaining the power to
appoint those who will execute the law); United States V. Ferreira, 54
U.S. 40, 50-51 (1852) (Congress may not designate a person to fill an
office).
22/ See E. Corwin, The Constitution of the United States of America:
Analysis and Interpretation 528 (Cong. Research Serv. 1973).
23/ 424 U.S. at 132 (emphasis in original).
24/ Id. at 138-39.
25/ See generally Myers V. United States, 272 U.S. 52, 265-74 (1926)
(Brandeis J. dissenting) (cataloging numerous examples); note 1 supra.
26/ E. S. Corwin, The President: Office and Powers 88-9 (1948).
27/ See e.g., 13 A.G. 516 (1871) (power of Congress to prescribe qualifications
for office limited by necessity of leaving scope for judgment and will
of the appointing power).
28/ 2 J. Richardson, Messages and Papers of the Presidents 129, 132 (1896).
See also Memorandum from Frederick W. Ford, Acting Assistant Attorney
General, Office of Legal Counsel to William F. Rogers, Deputy Attorney
General (Dec. 7, 1955) (bill requiring that nominees for Associate Justice
of the Supreme Court must have ten years of judicial service would
unconstitutionally restrict the President's power of appointment).
13
29/ See Myers V. United States, 272 U.S. 52, 128-29 (1926); Mow Sun Wong V.
Hampton, 435 F.Supp. 37, 41 n.6 (N.D. Cal. 1977), aff'd, 626 F.2d 739
(9th Cir. 1980), cert. denied, 450 U.S. 959 (1981).
30/ For example, alongside the formal limits on the President's discretion
to nominate whomever he chooses is the informal but important custom of
"senatorial courtesy," which in practice means that, before selecting a
nominee to fill an office within a particular state, the President
generally seeks the advice of those Senators from his own party
representing that state. Failure to do so may doom the nomination because
the Senate will customarily refrain from acting on the nomination absent
some manifestation of approval by the appropriate Senator or Senators.
Senatorial courtesy represents a practical accommodation of the President's
exclusive power to choose nominees and the Senate's exclusive power of
consent to appointments. It applies primarily to nominees for field
offices of departments and administrative agencies, and to district
court judgeships. In these instances the Senators involved cannot compel
the President to nominate someone to whose selection the President is
opposed, but they are often successful in confining the President's choice
to someone on a Senator's approved list. J. Kallenbach, The American Chief
Executive 394 (1966). Knowing this, the President usually solicits the
Senate's "advice" in advance of his nomination.
In a second category of offices, which includes Cabinet, sub-Cabinet and
diplomatic posts, the Senate's practical influence in the nomination
process is far less pronounced. Between 1789 and 1966, for example, only
eight Cabinet nominations were rejected by the Senate (four of them
occurred when President Tyler lost the support of his own Whig party in
the Senate in 1841). Kallenbach, supra, at 392. Senatorial influence
in the choice of Supreme Court Justices, Court of Appeals Judges, members
of administrative agencies, and sub-Cabinet level positions, falls
somewhere in between that of the first two categories.
Senatorial courtesy is not a constitutionally mandated practice, there
being no textually explicit basis for the custom. However, "no usage of
the Constitution affecting the powers of the President is more venerable."
E. S. Corwin, supra, at 73. See also Kallenbach, supra, at 394.
31/ See The Federalist, Nos. 66, 67, 77.
32/ See generally Memorandum from Assistant Attorney General Theodore Olson
to the Attorney General (June 14, 1982); Memorandum from Deputy Assistant
Attorney General Mary Lawton to Senior Associate Counsel to the President
Michael Cardozo (September 13, 1977); Memorandum from Assistant Attorney
General John Harmon to Counsel to the President Robert Lipshutz
(June 29, 1977) ("Lipshutz Memorandum").
33/ Although the protective strictures of FOIA and the Privacy Act do not
shield information from Conqress, neither Act requires the Executive
Branch to provide Congress with access to SPIN data, or any other
investigative information.
14
34/ See, e.g., Roviaro V. United States, 353 U.S. 53 (1957); United States
V. Tucker, 380 F.2d 206 (2d Cir. 1967); Wilson V. United States, 59 F.2d
390 (3d Cir. 1932); 8 Wright & Miller, Federal Practice and Procedure §
2019; 2 Weinstein's Evidence I 510[02].
35/ See, e.g., Black V. Sheraton Corp. of America, 564 F.2d 531, 546 (D.C.
Cir.1977); Association for Women in Science V. Califano, 566 F.2d 339 (D.C.
Cir.1977); Brown V. Thompson, 430 F.2d 1214 (5th Cir. 1970); Note,
Discovery of Government Documents and the Official Information Privilege,
76 Colum. L. Rev. 142 (1976).
36/
[I]t has been the experience of law enforcement officers that the
prospective informer will usually condition his cooperation on an
assurance of anonymity, fearing that if disclosure is made, physical
harm or other undesirable consequences may be visited upon him or
his family. By withholding the identity of the informer, the
Government profits in that the continued value of informants placed
in strategic positions is protected, and other persons are encouraged
to cooperate in the administration of justice.
United States V. Tucker, supra, 380 F.2d at 213.
37/ See 2 Weinstein's Evidence 1 509[05].
38/ See Memorandum of Understanding Between Attorney General Civiletti (signed
Dec. 2, 1980) and President-elect Reagan (signed Nov. 28, 1980) ("persons
interviewed during these investigations may be assured that to the extent
permitted by law information identifying such persons will be kept
confidential"). (Appendix E)
39/ The Office of Legal Counsel has previously noted that "there are often
significant factors weighing against the release of investigative information
to the Congress." Lipshutz Memorandum, cited at footnote 32, supra.
40/ 40 Op. A.G. at 46-7.
41/ Id.
42/ The Court strongly implied that the privilege was absolute in the case
of "military, diplomatic, or sensitive national security secrets."
418 U.S. at 706.
43/ Senate Select Committee on Presidential Campaign Activities V. Nixon,
498 F.2d 725 (D.C. Cir. 1974) (en banc), was a suit by the Senate Watergate
Committee to compel enforcement of a subpoena duces tecum served on the
President for production of tape recordings of conversations between the
President and a principal aide. The District Court refused to compel
enforcement and, on appeal, the United States Court of Appeals for the
District of Columbia Circuit affirmed. Citing its earlier case of Nixon
V. Sirica, 487 F.2d 700 (D.C. Cir. 1973), which had involved a Presidential
claim of privilege against a grand jury subpoena, the court held that
"application of Executive privilege depends on a weighing of the public
interest protected by the privilege against the public interests that would
15
be served by disclosure in a particular case.' II Id. at 729. Because
there was a "great public interest" in maintaining the confidentiality
of presidential conversations, the court held the conversations
"presumptively privileged" even from in camera examination in court.
The presumption could be overcome "only by a strong showing of need by
another institution of government--a showing that the responsibilities
of that institution cannot responsibly be fulfilled" without access to
the requested conversations. Id. at 730. Applying this standard, the
court ruled that because the subpoenaed information was not "demonstrably
critical to the responsible fulfillment of the Committee's functions,"
Id. at 731, the President's claim of Executive privilege would be upheld.
44/ The Senate is unlikely to resort to issuance of a subpoena to the President
in this context, since it has a more effective tool at its disposal--
refusal to approve the nomination.
45/ Senate Select Committee, supra, 498 F.2d at 731. Of course the Senate's
power to obtain relevant information does not depend exclusively--
or even primarily--on the cooperation of the Executive Branch. In
weighing the Senate's need for Executive Branch investigative files,
therefore, it is appropriate to take account of the Senate's independent
investigative powers to call witnesses to testify and to subpoena relevant
documents from private parties in aid of its constitutionally assigned
tasks.
46/ Lipshutz Memorandum, cited at footnote 32, supra. Assistant Attorney
General Harmon also stated in a Memorandum to all Heads of Offices,
Divisions, Bureaus and Boards of the Department of Justice (May 23,
1977), that "principles of nondisclosure may be relaxed in situations
where the public interest would justify it. For example, materials
properly subject to claims of Executive privilege may be disclosed to
Congress in cases involving Senatorial confirmation of Presidential
nominations.
16
SECTION II
PURPOSE AND PROCEDURES
OF SPECIAL INQUIRY INVESTIGATIONS
The FBI is authorized to conduct background investigations of persons
seeking government employment and employed in the Federal Government pursuant
to laws and Executive orders and by agreements between the Bureau and the
President, the Departments, and other governmental agencies. Among the many
categories of applicant investigations for which the FBI has responsibility
are Departmental Applicant Investigations (DAPLI) of candidates for Federal
judicial positions, U.S. Attorneys, U.S. Trustees, U.S. Marshals, and other
top-level officials of the Department of Justice; United States Courts
Applicant Investigations; and for the Department of Energy and the Nuclear
Regulatory Commission, among others. Special Inquiry (SPIN) is a term used
by the FBI to characterize background investigations conducted for the
President, the National Security Council, and various Congressional committees.
SPIN requests received from the White House include Presidential appointments
(some of which require Senate confirmation), White House staff employees,
and persons having access to the White House. In general, the FBI's full-field
background investigation is standardized and is applicable to the inquiries
performed for all of these clients.
Purpose
The purpose of a SPIN investigation conducted for the White House in
connection with a Presidential appointment is to provide White House officials
with information from which they can make an informed judgment as to whether
the President should proceed with a nomination. The investigation focuses on
the character, associates, reputation, and loyalty of the nominee and not on
substantive ability in the area of the particular appointment. The scope and
focus of the investigation and the manner in which it is reported are intended
to meet the specific needs only of the President through his Counsel, the
FBI's client in these matters.
It is important to note here that the FBI's SPIN investigation is not
the only basis on which the President's staff reviews and makes judgments
regarding potential nominees. Other information reviewed by the White House
includes Personal Data Questionnaires (PDQ), financial data questionnaires,
checks of IRS tax records, name checks, and personal interviews.
Workload and Resource Allocation
During FY 1982, the FBI conducted a total of 988 SPIN investigations, or
24.4 percent of the total of all background investigations for that year. In
terms of resources expended, 36.8 workyears- of a total of 129.6 workyears
for all background investigations--were devoted to SPINs. Workload and
workyear figures for the 5-year period from FY 1978 to FY 1982 are summarized
in the following table:
17
Background Investigation Workload
FY 1978
FY 1979
FY 1980
FY 1981
FY 1982
Number of Cases
All Background
Investigations (BI)
3,936
3,676
4,269
4,326
4,047
SPIN Investigations*
774
646
833
1,329
988
Resources Used
Direct Workyears, all BI
137
139.3
134.6
155.2
129.6
Direct Workyears, SPINs
35
25.7
26.4
50.5
36.8
*Includes some Congressional committee requests.
It is clear from the FY 1981 data that SPIN-related workload increases markedly
during periods of Presidential transition.
Administrative Process
Requests to initiate SPIN investigations are forwarded by courier from
the Office of the Counsel to the President to FBI Headquarters, along with
appropriate background forms (SF-86, Security Investigation Data for Sensitive
Position) and necessary waivers for access to records. These are delivered
directly to the FBI Headquarters SPIN Unit. The background data is thoroughly
reviewed to determine whether specific areas need to be explored, such as
arrests, discharge from employment, and extensive foreign travel. This data
is also closely examined in order to determine if the records of any particular
Federal, State, or local agency should be reviewed. Checks are also initiated
of records systems located at FBI Headquarters. The FBI is also working with
the White House staff to develop a supplement to the standard background form
(SF-86) which will provide additional information useful in conducting an
investigation.
Before the request for investigation is forwarded to the field offices,
FBI Headquarters establishes an investigative deadline for its completion.
The FBI has engaged in discussions with the White House Counsel's Office to
develop a balance between the need for a timely investigation and the
constraints on FBI resources. Where extremely short deadlines are involved,
an effort will be made to conduct a thorough investigation, but the White
House will be informed if the short time frame necessitates a more limited
inquiry. For Presidential appointments in general, the FBI imposes a deadline
of 10 workdays (about 14 calendar days) on its field offices and attempts to
have the completed results to the White House in 25 calendar days. These
deadlines represent ideal time frames and must often be extended because of
investigative problems which are encountered or administrative difficulties
(such as availability of resources) which develop.
18
The request is forwarded by teletype to the field offices covering areas
where the nominee has resided, gone to school, or been employed. Upon receipt,
a search is immediately made of field offices' records, a case is opened, and
assignment is made to an investigative agent. This agent conducts much of
the investigation, but, if required to complete all the necessary work in a
short time period, other personnel are assigned to assist. The agent prepares
a communication to Headquarters containing the investigative results; the
communication is reviewed by the field office supervisor prior to transmittal.
The results from each field office are then reviewed and evaluated at
Headquarters to ensure a thorough and complete investigation has been conducted.
Results of SPIN investigations are furnished to the White House Counsel's
office in a summary memorandum, rather than in investigative reports, which
is prepared at Headquarters based upon results sent in from field offices by
teletype and report. The summary memorandum is then forwarded by courier to
the White House.
The FBI has offered to provide full reports to the White House reviewing
officials and is ready to make the detailed reports available whenever
requested by them; at present, however, White House officials consider the
summary memorandum to be adequate for their needs. A recent procedure has
been introduced to forward to the White House with the summary memorandum the
complete text of interviews containing derogatory information extracted from
the full reports. When such information is provided, if the individual
interviewed has specifically requested that his identity not be disclosed
outside the FBI, that request is honored and the identity is not included
in any materials disseminated.
The FBI has been engaged in an ongoing effort to ensure the thoroughness
of SPIN investigations and to keep response time to the White House to the
minimum. To make the process more efficient, the FBI is introducing word
processing capabilities into this system and is also developing a computerized
capacity to manage and monitor these investigations.
Investigative Process
The basic areas of inquiry in all applicant-type investigations, including
SPIN, normally concern the individual's entire adult life and include
information pertaining to birth and naturalization, education, marital status,
arrest checks concerning close relatives, employment, military service, and
credit and arrest checks, as well as the results of interviews of neighbors,
references, and associates, and other interviews and checks as appropriate.
In each type of investigation, the results are provided to the agency which
made the request. Appendix B contains a more detailed outline of the scope
of the investigation.
In addition, instructions have been issued by the FBI for investigations
of Presidential appointments involving Senate confirmation to ensure that
general and special indices at FBI Headquarters and in all field offices are
reviewed. Further, a check is made of the Office of the United States Attorney
in any district where the nominee has resided, gone to school, or been employed
in an effort to resolve if Federal prosecutive action has ever been considered.
19
concerning the nominee. In these, as well as other background investigations
where an individual has been employed by the Federal Government, the Office
of the Inspector General at the agency for which the individual works or
worked is routinely checked.
Each investigation is somewhat tailored to the individual's background.
Other variations in investigative activity involve principally the number of
individuals who are normally interviewed. In most investigations, a minimum
of 20 individuals having knowledge of the applicant are interviewed. In SPIN
investigations involving Presidential appointments, the minimum is expanded
to 35 interviews in order to obtain a broader perspective on the nominee.
If derogatory information is received, the FBI Manual of Investigative
Operations and Guidelines contains instructions that such information be
thoroughly investigated and resolved. Allegations should be traced to their
original source. Such allegations are scrutinized at all levels of review to
ensure that every effort has been made to verify or disprove the allegation.
All investigative steps undertaken to resolve an allegation are reported to
FBI Headquarters.
When allegations of criminal misconduct are received during a background
investigation, the FBI has basically two courses to follow. If the information
is sufficiently explicit to warrant a criminal investigation, then a separate
case is opened under the substantive violation and is pursued independently
of the background investigation. When the results of the background inquiry
are forwarded to the requesting agency, notification of the pending criminal
investigation would be made. If the information would not trigger a criminal
investigation, then an effort is made during the background inquiry to resolve
the matter either by developing sufficient data to warrant a criminal case
or by disproving the allegation. The information developed would be appro-
priately reported to the requesting agency and, if pertinent, a prosecutive
opinion may be obtained from the United States Attorney's Office and reported.
There are some areas of interest concerning a nominee for which the FBI
does not have primary investigative responsibility. The FBI does not check
IRS records in background investigations. The requesting agency contacts
IRS directly, and the FBI is not involved in any exchange of information.
In SPIN cases involving Presidential appointments, the FBI has not been
tasked with investigating a nominee's sources of income. Financial statements
are reviewed by White House personnel. If allegations or improprieties are
developed from these reviews, however, the FBI would undertake the necessary
investigation to resolve them.
Appendix C contains a copy of instructions in the FBI Manual of
Investigative Operations and Guidelines which set forth the general level of
investigation undertaken by the FBI in applicant inquiries requested by other
Federal agencies. This manual is currently being revised to incorporate
instructions concerning expanded investigation, to address other procedural
changes, and to clarify existing instructions. The general scope, however,
remains similar to that set forth in the attachment. A copy of the specific
instructions pertaining to SPIN matters which supplement the general instructions
is also included.
20
Summarization Process
As noted above, the information provided by field offices is reviewed
at FBI Headquarters and condensed into a summary memorandum. The summary
sets forth data under topical headings concerning birth, education (dates,
schools, degree earned), employment (date, employer, position held), military
service, family status, credit and arrest checks, and the identity of other
Federal agencies checked. If information is favorable, a summary paragraph
is prepared condensing into a few descriptive words or sentences the comments
of persons interviewed, number interviewed, and their general category
(reference, professional associate, neighbor, etc.). In Presidential appointee
summaries, the identities of 8 to 10 persons interviewed are usually furnished.
If derogatory information is developed, it is set forth in the summary
memorandum. If it is of particular significance, the information is orally
provided to the designated White House officials before the written summary.
If the individual who furnished the information requests confidentiality,
his or her identity is concealed, but a description of the individual's
association and basis for knowledge is included SO that the reviewer can
place appropriate weight on the information. In addition, favorable information
which offsets the derogatory information is also included. Complete texts
of interviews containing derogatory information are now being provided to
the White House along with the summary memorandum.
21
SECTION III
CHAPTER IV: HISTORICAL BACKGROUND
A reexamination of the purpose of SPIN investigations and the obligation
and scope of disclosure necessarily requires a historical review. Much of
this history looks at the dissemination of the results of background investi-
gations to the White House, the Department of Justice, and, sometimes, the
Senate Committee responsible for confirmation. Although it focuses largely
on SPINs of White House nominees, the treatment of background investigations
on Departmental applicants is also considered at some length for the purpose
of comparison and to place the SPIN process in a broader perspective.
White House Requests for Background Investigations
On August 13, 1945, the FBI received its first request from the White
House to conduct a background investigation. Up to that time, the FBI
conducted routine background investigations on only two categories of Federal
applicants and employees. First, it conducted background investigations on
all Department of Justice applicants, including U.S. Attorneys, U.S. Marshals,
and Federal Judges. Second, during World War II, it was granted approval by
the Attorney General to examine the backgrounds of applicants and employees
in certain wartime agencies, such as the Office of Production Management.
In addition, the FBI conducted loyalty investigations on applicants and
employees of all other Federal agencies when there was a charge of subversive
activity.
Although the Truman Administration initiated the practice of requesting
White House investigations, it did not routinely make such requests; only 334
background investigations were asked for during its almost eight years in office.
The Eisenhower Administration was the first to require background investigations
on all top officials and White House staff members. In November 1952, the
President-elect asked the FBI to investigate all his Cabinet appointees.
In fact, he required his appointees to call Director J. Edgar Hoover and
request their own investigations. He later extended this program to include
all sub-Cabinet positions, most sensitive executive positions in government
agencies when requested by the Cabinet members, and virtually all White House
staff employees. In all, the FBI conducted approximately 3,500 background
investigations on White House request during the Eisenhower Administration.
President Kennedy requested background investigations on 1,427 individuals
during his 1,000 days in office, including all members of his Cabinet, except
his brother Robert. In the first 11 months of the Johnson Administration,
only 273 background investigations were requested, perhaps because so few
Kennedy appointees were replaced during the transition. However, on October 15,
1964, Presidential Assistant Bill Moyers requested the FBI to conduct full-
field investigations of all White House civilian personnel, regardless of rank
or position, and to reinvestigate those individuals every three years. After
that order, the FBI conducted more than 3,600 background investigations and
reinvestigations for the Johnson Administration, including all Cabinet
appointees except Postmaster General John A. Gronouski and Secretary of
22
Health, Education and Welfare Anthony J. Celebrezze. The policy of reinvesti-
gating all civilian White House staff employees was reaffirmed in a letter
from Philip Buchen, Counsel to President Ford, to Attorney General William
Saxbe on October 25, 1974, and reinvestigation every three years was the
policy through the Carter Administration. However, on July 27, 1982,
Presidential Counsel Fred Fielding advised Bureau officials that the Reagan
Administration will only request reinvestigation every four years.
The number of background investigations requested by the Nixon and Ford
Administrations is not readily available at this time. In FY 1980, President
Carter requested 767 background investigations on Presidential appointees,
White House staff members, and National Security Council employees. In FY
1981, which includes parts of both the Carter and Reagan Administrations,
1,284 background investigations were requested by the White House; in FY 1982,
President Reagan requested 950 background investigations.
Distribution Within the Executive Branch
Historically, when the Department of Justice or a Cabinet official has
requested a background investigation, the FBI has provided the results of its
investigation in the form of a compendium of agents' reports. However, when
the White House has requested a background investigation, the results have
been furnished in the form of a summary memorandum. As described in a
memorandum written by Director Hoover, this practice was.initiated by the
Bureau "on its own motion" after President Eisenhower's election to avoid
sending innumerable agents' reports to transition headquarters and various
government departments. Because summaries were prepared for convenience and
expediency, the Director hoped to discontinue the practice and return to
providing reports once the bulk of the investigations were concluded. However,
the White House came to prefer summaries and it appears that the FBI never
returned to giving the White House investigative reports.
The FBI continued to provide the White House with a compendium of agents'
reports only when a previous background investigation was brought up to date
or when the White House requested a background investigation on an individual
who had recently been the subject of a full-field FBI investigation initiated
by someone other than the White House. However, even these exceptions were
eliminated before the end of the Eisenhower Administration. Summaries were
requested in the first situation in August 1955 by J. William Barber, Assistant
to the Special Counsel to the President, and in the second by Presidential
Assistant Sherman Adams in April 1957. Since that time, the White House has
received summary memoranda in all full-field background investigations. The
White House's desire to continue to receive summary memoranda was reaffirmed
in November 1968 by Henry McPhee of President-elect Nixon's staff, and in
Memoranda of Understanding agreed to by both Presidents-elect Carter and Reagan.
In March 1983, the White House agreed to an FBI proposal to supplement
the summary memoranda furnished to the White House with the full text of
interviews containing derogatory information. If the White House wishes to
share these interviews with the Senate Committee considering confirmation,
the FBI will further review the text to excise the name of any person who
requested confidentiality and any information that might tend to identify
that person. The identity of individuals who specifically requested that
their name not be revealed outside the FBI will have already been concealed.
23
After reviewing the summary memorandum on its nominee, the White House
occasionally has asked the FBI to conduct additional background investigation.
Generally, these requests have been initiated by the White House, but, in a
few instances, the Committee considering confirmation has asked for additional
information and the White House has agreed to forward its request to the FBI.
During the Eisenhower years, FBI summaries prepared in background
investigations requested by the White House on Presidential appointees were
provided to both the White House and the Attorney General, and the full
reports prepared in response to Cabinet officer requests for investigations
were provided to the Cabinet officer, the White House, and the Attorney
General. This practice ended at the beginning of the Kennedy Administration.
In a January 24, 1961, FBI memorandum, Director Hoover approved a new policy
that treated the Attorney General as any other Cabinet officer by providing
him access only to reports of background investigations requested by the
Department of Justice. The file is unclear as to whether this policy was
carried out at the request of the White House or initiated by the FBI.
This policy changed again in September 1966 when Attorney General Nicholas
Katzenbach requested copies of all FBI communications to the White House, the
Vice-President, and Cabinet officers. He further instructed that if, for
some reason, the Attorney General is not provided with such a copy, the correspon-
dence should specifically state, "The Attorney General has not been provided
a copy of this.communication."
This policy was reversed again in January 1969 when President Nixon
specifically requested Director Hoover to provide the results of background
investigations only to him or his personal representative. Since this
instruction countermanded any policy providing the Attorney General with
copies of these results, it was deemed unnecessary to state on the summary
memoranda that the Attorney General had not been furnished a copy. President
Nixon's instructions were not interpreted to prohibit the Attorney General
from being advised of criminal violations that may have been uncovered during
a background investigation. The policy set forth by President Nixon constitutes
the current practice of the FBI.
Furnishing Reports to Congress
White House Appointees
As set forth above, the FBI historically has furnished. the results of
its background investigations on Presidential nominees solely to the White
House and, at times, the Attorney General. It has not generally provided
information concerning a nominee to the Senate Committee considering
confirmation. A June 1954 FBI memorandum provides early evidence of the
FBI's policy of not dealing directly with Senate Committees in these matters.
At that time, a Committee requested the FBI's investigative summary concerning
Presidential appointee Lawrence Quincy Mumford. Charles Willis, Jr., of the
White House advised the FBI that the Committee should be referred to the
Office of Presidential Assistant Sherman Adams, and was told by an FBI official
that this was the FBI's usual procedure in such cases.
24
When President Nixon nominated Congressman Gerald Ford for the Vice-
Presidency, Acting Attorney General Robert H. Bork sent letters to Chairman
Cannon of the Senate Committee on Rules and Administration and Chairman Rodino
of the House Committee on the Judiciary in August 1974 offering to provide
the Chairman and the Ranking Minority Members of the Committees with access
to the FBI investigative reports in their entirety, rather than summaries of
the reports. However, he requested that access to these reports not be
extended to other Committee members or staff members. In addition, all FBI
materials would remain in the custody of Department of Justice officials, and
no materials would be left with the Committee. Senator Cannon accepted these
conditions, but Congressman Rodino did not, requesting instead that the
reports be made available to him and seven other Committee members. Acting
Attorney General Bork accepted the Congressman's conditions to avoid any
delay in the confirmation hearings. He also noted that the Congressman had
suggested he would subpoena the reports unless his request was honored.
Similar procedures were reportedly employed in the confirmation of Vice-President
Rockefeller.
On March 23, 1977, the Senate Committee on Government Operations in a
report entitled "Study on Federal Regulations: The Regulatory Appointments
Process" recommended that the Chairman of the Committee considering confirmation,
the Ranking Minority Member, and a staff member designated by each be given
access to "investigative findings" prepared by the FBI from its background
investigation. The "investigative findings" appear to be the summary memoranda
provided to the White House. The Committee specifically rejected the argument
that sufficient safeguards cannot be developed to maintain the confidentiality
of background information, noting that its proposal strictly limited the
number of persons given access to this information. It also called for the
creation of a Senate Office on Regulatory Appointment Investigations to
provide independent background checks on all Presidential nominees to regulatory
positions. The Director of this proposed office was to have access to FBI
summaries to eliminate duplication and provide leads for further inquiries.1,
In June 1977, Senator Warren G. Magnuson, Chairman of the Senate Committee
on Commerce, Science, and Transportation, asked the White House for a copy of
an FBI summary memorandum on a Presidential nominee for Vice-Chairman of the
Civil Aeronautics Board. At a meeting held at the White House to discuss
this request, Deputy Associate FBI Director James B. Adams pointed out the
FBI's longstanding concerns of protecting the innocent from unfounded
allegations and maintaining a relationship of confidentiality with persons
interviewed. It was noted at that meeting that the Ford and Rockefeller
nominations were the only times members of Congress were permitted to review
the results of FBI SPIN investigations. It was also noted that any change in
procedure would have to be approved by the Attorney General. There is no
subsequent record in the file indicating how this issue was resolved.
It is not clear from FBI files and personal recollections when the White
House began to make these summaries available to the Committees. The under-
standing of the current White House Counsel's Office is that their predecessors
in the Carter Administration permitted staff members of the Committee responsible
for confirmation to review the FBI summaries at the White House. Notes were
25
allowed tu be taken, but copies of the summaries could not be retained.
President-elect Reagan's transition team permitted only the Chairman and
Ranking Minority Member of the Committee considering confirmation to read
the summaries in the presence of a member of the President-elect's Counsel's
Office. is in the Carter Administration, notes could be taken, but copies
could not be made. This procedure continues to be employed by the Reagan
Administration.
The confirmation hearings on Secretary Raymond J. Donovan apparently
represented the first occasion in which the FBI directly furnished the written
results of a SPIN investigation to a Senate Committee. The White House
requested the FBI to conduct a full-field investigation of Donovan on
December 30, 1980. The next day, Chairman Orrin Hatch and Ranking Minority
Member Edward Kennedy of the Senate Committee on Labor and Human Resources
co-signed a letter to Director William Webster asking the FBI to provide them
with a report regarding "all the information the FBI has already assembled in
connection with your background investigation of Mr. Donovan" and "all matters
relating to the prior Department of Justice inquiries relating to the Schiavone
Construction Company or Mr. Donovan." In response to this letter, a one-page
FBI letterhead memorandum on the connection between the Schiavone Construction
Company and a company which had been the subject of an FBI investigation into
possible Hobbs Act violations was transmitted to the Committee after being
approved by the Department of Justice.
Meanwhile, the FBI delivered a summary memorandum of its SPIN investigation
of Donovan to Conflict of Interest Counsel Fred Fielding on January 5, 1981,
and a supplemental memorandum on January 12, the same day Donovan testified
before the Committee. The next day, protected Government witness Ralph
Picardo alleged that Donovan had paid him on 15 or 20 occasions to ensure
"labor peace." A brief FBI report describing Picardo's allegations was
provided to the Committee on January 14 after being approved by the Office of
Legislative Affairs at the Department. A copy of the report was furnished to
Fielding.
On January 15, the FBI briefed Committee staff members in detail concerning
the Picardo allegations, and later that evening, two of the staffers interviewed
Picardo at FBI Headquarters. Fielding attended the briefing, but did not
join in the interview of Picardo. The information provided to the Committee
staff at the briefing was summarized in a letterhead memorandum and, with the
approval of the Office of Legislative Affairs, delivered to Senator Hatch on
January 19 with a copy provided to Fielding.
During the additional investigation provoked by Picardo's allegations,
Committee investigators provided the FBI directly with allegations they had
received in the course of their independent investigation, apparently with
the expectation that the FBI would follow up on them. The FBI, in fact,
pursued these allegations when they reasonably could be resolved through
appropriate investigation.
A 19-page summary memorandum describing the additional investigation the
FBI had conducted on Donovan and the Schiavone Construction Company was
approved by the Department of Justice on January 24 and furnished that day
to Senator Hatch and Fielding. On January 27, at the second Senate hearing
on Donovan's confirmation, a "sanitized" version of this summary memorandum
26
was placed in the record by Senator Kennedy, and Senator Hatch read portions
of the report verbatim in questioning Committee witnesses. At this hearing,
Executive Assistant Director Francis Mullen, Assistant Director Charles
Monroe of the Criminal Investigative Division, and SPIN Unit Chief Anthony
Adamski testified before the Committee regarding the results of the Donovan
background investigation. A file review and interviews to date fail to
disclose any prior occasion in which the Bureau cooperated to this extent
with a Senate Committee in confirmation hearings.
Departmental Applicants
Different procedures have evolved for providing information to the Senate
Judiciary Committee on Departmental applicants, i.e., U.S. Attorneys, U.S.
Marshals, and Federal judgeships. In a letter dated April 30, 1941, to
Congressman Carl Vinson, Chairman of the House Committee on Naval Affairs,
Attorney General Robert Jackson reported that he has "taken the position
that Committees called upon to pass on the confirmation of persons recommended
for appointment by the Attorney General would be afforded confidential access
to any information that we have -- because no candidate's name is submitted
without his knowledge and the Department does not intend to submit the name
of any person whose entire history will not stand light.' 2/
Less than a year later, however, early in the tenure of Attorney General
Francis Biddle, a dispute arose with the Judiciary Committee over its request
to see the confidential FBI report on Pierson Hall, a nominee for a Federal
Judgeship in California. At that time, Assistant to the Attorney General
James Rowe, Jr., who acted as liaison to the Judiciary Committee, advised the
Attorney General that the practice of his predecessor was, in rare cases, to
show the report personally to an interested Senator on the Committee. He
later learned from members of the Judiciary Committee that the general practice
of his predecessor was to make the FBI files available to any Senator.
The arguments presented by the Department of Justice, the FBI, and the
Judiciary Committee during that dispute have a familiar ring. Rowe called
for a definite policy to be established for all FBI reports pertaining to
Presidential appointments. He believed that furnishing members of Congress
with FBI background investigation reports would destroy their value, because
the public would quickly learn that the FBI could not ensure the confidentiality
of their identity or their information. Attorneys would be especially
reluctant to speak against a judicial nominee from their state if they believed
that their comments would be seen by the sponsoring Senator. Moreover, FBI
agents would adapt to the more extensive disclosure by preparing their reports
with an eye on the prospective audience and supplementing orally their written
statements.
Rowe specifically cautioned that "the Department of Justice cannot play
favorites. If it is known -- and inevitably it becomes known -- that the
Department has shown an FBI report in one particular field on a particular
person to a member of Congress, the inevitable trend is that all reports on
all matters must be shown to all members of Congress. "3/ Rowe's concern
about favoritism anticipated remarks he heard a few weeks later when the
Judiciary Committee maintained that it was distinguishable from all other
Committees. Rowe replied that he was agreeable to this point, but no other
Congressional Committee would be. It is worth noting that Chairman Vinson
27
tried a similar approach a year earlier with Attorney General Jackson when he
requested FBI criminal investigative reports concerning labor disputes
involving naval contractors. The Attorney General's response mirrored that
of Rowe:
[A] policy cannot be made anew because of personal confidence
of the Attorney General in the integrity and good faith of a
particular committee chairman. We cannot be put in the position
of discriminating between committees or of attempting to judge
between them, and their individual members, each of whom has
access to information once placed in the hands of the committee.4/
FBI Director Hoover concurred with Rowe's arguments and supported a
policy of showing FBI reports "to absolutely no one outside the Department
except, of course, the President. "5/ He advised the Attorney General that,
if a decision was made to forward reports to a Senate Committee or individual
Senators, FBI agents interviewing persons regarding an applicant would have
to inform them that what they say will not be treated confidentially, but
will be forwarded to the Senate. He believed this would render FBI background
investigations "very definitely incomplete and more or less sketchy."
"I do not see that there can be any middle ground in this situation," he
concluded.
The position of the Judiciary Committee, apart from protesting its
uniqueness, was that it could not perform its confirmation function without
the same information relied upon by the Attorney General in making his
nomination. Its duty to confirm, it maintained, implied a right to see the
FBI reports.
Attorney General Biddle disagreed with Rowe and Hoover, and worked out a
procedure with the Judiciary Committee whereby a representative of the
Department of Justice would appear before the Committee "and make frank
disclosure of the material in the FBI reports, without indicating the sources
from which the material was obtained." It was further agreed that "the
members of the Committee would regard this material as completely confidential,
and that if any material derogatory to a candidate was sufficiently serious,
the Committee would through its own investigation develop such information at
a public hearing, without revealing that the information originally came from
FBI reports.
The first two nominations in which the new procedures were employed
produced ominous forebodings. The first, involving Pierson Hall, was delayed
by Senator McCarran because, as Rowe was informed confidentially by another
Senator, McCarran was convinced that Rowe was withholding something from the
FBI reports and wanted personally to read them in their entirety. In the
second, concerning Thomas F. Meaney, Senator Austin took notes during Rowe's
confidential discussion of the FBI reports and inserted those notes into the
public record at an open Committee hearing. Rowe had earlier protested to
Austin that his intentions were contrary to the agreement between the Attorney
General and the Judiciary Committee, but the Senator responded that he did
not feel bound by that agreement. In fact, after the Austin episode, Rowe
recommended to the Attorney General that he rescind the agreement with the
Committee. He drafted two letters for the Attorney General to Senator Van Nuys
28
complaining of Senator Austin's conduct. The first rescinded the agreement
as "unworkable" and advised of a return to the "traditional practice of the
Department of Justice that these reports be regarded as completely confidential,
and available only to the President and the Attorney General. "8/ The second
letter asked that the agreement be strictly enforced by the Committee. The
second letter was sent.
Although the agreement survived its shaky start, it apparently evolved
into a practice whereby the investigative reports were made available to the
Chairman of the Judiciary Committee and only occasionally to the full Committee.
In one instance in October 1949 where portions of the reports were read to
the Committee as a whole, the Senator sponsoring the judicial nominee was
present at the briefings even though he was not a member of the Committee.
Later, derogatory information from the reports appeared in columns written by
Drew Pearson and Fulton Lewis, Jr. In a memorandum to the Attorney General
dated October 19, 1949, Director Hoover wrote with regard to this situation:
The task of obtaining accurate pertinent information during
the course of investigation of individuals under consideration
for judicial and other important Government positions is
rendered most difficult when it is known that information
which is obtained by this Bureau for the confidiential use
of the Attorney General of the United States becomes available
to unauthorized sources. More and more a definite reluctance
has been encountered on the part of judges, other officers of
the Court, prominent members of the bar and other individuals
possessing pertinent information to comment upon the qualifi-
cations, or lack thereof, of an individual under consideration
for a judicial appointment. Unless information furnished by
such people can be maintained confidential it is understandable
that these avenues will be closed to representatives of this
Bureau in the future.
It is suggested that if it is necessary for the results of an
investigation conducted by this Bureau to be made available
to the Senate Judiciary Committee or to any other Congressional
Committee the reports should be carefully edited first and a
closer control should be exercised over the information in
order to prevent its dissemination to individuals who have
no right to it.
Perhaps in response to Director Hoover's suggestion, the Department by
the early 1950s made agents' reports available only to the Chairman of the
Committee and furnished him as well with a summary prepared by the Deputy
Attorney General's Office. In March 1953, the Attorney General challenged
this practice at a luncheon briefing and stated that agents' reports should
not be furnished to any Committee of Congress. Deputy Attorney General
William Rogers responded that he concurred in principle, but urged that the
policy not be changed at that particular time with respect to the Judiciary
Committee Chairman. The Attorney General finally agreed to showing agents'
reports to the Chairman of the Judiciary Committee provided they were read
to him by an official from the Deputy Attorney General's Office and not left
with him.
29
This practice appears to have continued virtually unchanged into and
through the long Chairmanship of Senator James Eastland from 1957 to 1979.
After a Presidential appointee was nominated, a liaison from the Department
of Justice would meet alone with Eastland in the Senator's Office and brief
him on any derogatory information in the file. The full file was taken along
and Eastland was referred to relevant portions of it and permitted to read
any other portions he was interested in. The file was taken back to the
Department at the conclusion of the briefing. Eastland did not receive any
copies or make notes from the file.
On several occasions other members of the Committee, or of the three-
member subcommittee which handled confirmations, requested access to background
investigation materials from the Department and were referred to Senator
Eastland. Eastland sometimes asked the Deputy Attorney General for permission
to share information with, or for the file to be made available to, the
Ranking Minority Member of the Committee. Such requests were never refused.
Most of Senator Eastland's questions concerning a nominee were answered
directly from the information contained in the reports. There was no formal
Committee investigative staff through most of this period, although Eastland
occasionally asked his staff counsel to check on certain information or made
some phone calls himself. Senator Eastland very rarely asked for the FBI to
conduct a follow-up investigation, but when he did, he was always accommodated.
The only known exception to this procedure occurred with the nomination
to the Supreme Court of Justice John Paul Stevens in 1975. At Senator
Eastland's request, the Department liaison gave a briefing for all interested
members of the Committee. Although he brought the file with him, it was not
reviewed by the members. Also, beginning in 1975, the Deputy Attorney General
occasionally attended the briefings.
Sometime after President Carter assumed office in 1977, the three-member
subcommittee was disbanded and the full Committee held confirmation hearings.
Senator Eastland permitted Senator Dennis DeConcini to chair these hearings
and to be briefed by the Department. The process was much the same with
DeConcini as it had been with Senator Eastland. On at least two occasions,
however, DeConcini was permitted by the Department liaison to retain a file
overnight.
Senator Edward Kennedy succeeded Senator Eastland as Chairman of the
Judiciary Committee in January 1979. At about the same time, the Omnibus
Judgeship Act, enacted in 1978, created 152 judgeships and greatly increased
the confirmation workload of the Committee. In addition, President Carter's
establishment in 1978 of a Circuit Judge Nominating Commission to implement a
merit selection system appears to have increased the Judiciary Committee's
interest in the manner and criteria of judicial selection.9
With these changes in the workload and interest of the Committee came
a significant revision in the procedures governing Committee access to the
results of FBI background investigations. Senator Kennedy, early in his
tenure as Chairman, reached an oral agreement with Attorney General Griffin Bell
30
which contemplated that the Chairman, Ranking Minority Member, and an investi-
gator designated by each would review the reports at the Department of Justice.
By letters to the Attorney General dated February 9 and 16, 1979, Chairman
Kennedy and Ranking Minority Member Thurmond each designated an investigator
as the person who would have access to the FBI reports and other relevant
Department of Justice files. By response to each, dated March 2, 1979,
Attorney General Bell stated that the Associate Attorney General's Office
would provide these designees with access to the reports for all Department
of Justice nominees requiring confirmation.
In practice, Senator Kennedy sent six or seven staff members, while
Senator Thurmond sent only his investigator. These representatives from the
Committee were permitted to make notes or use dictaphones, but could not make
copies of the file. In addition, the Committee member who was to chair the
hearing was permitted to have access and sometimes was given briefings.
Requests for additional investigation by the FBI were made directly to
the Department or were referred to the Department by the FBI and were usually
accommodated. In at least one instance, however, such a request was denied.
By letter dated June 11, 1979, Senator Kennedy requested additional investigation
of a particularly controversial judicial nominee. The Department refused,
stating that it was satisfied with the investigation. It offered, however,
to detail an FBI agent to the committee if it lacked sufficient resources to
conduct its own investigation. The offer was accepted and an agent was
detailed to the Judiciary Committee from approximately June 1979 to February
1980 where he reported to the Chief Investigator and reviewed the background
investigations on this and approximately seven other nominees.
At the beginning of the Reagan Administration in January 1981, Senator
Strom Thurmond became Chairman of the Judiciary Committee. During Attorney
General William French Smith's confirmation hearing on January 15, 1981,
Senators Thurmond and Biden stressed the importance of Committee access to
the results of background investigations and asked whether Smith would permit
the Committee to keep the files in a locked room to which the Chairman and
Ranking Minority Member and one person from each of their staffs would have
access. The Attorney General declined to make a commitment, but promised to
work towards a mutually satisfactory arrangement.10/
The arrangements were subsequently worked out along the lines the Senators
had suggested. The files now are sent to the Committee after the nomination
and kept in a vaulted room under the direct control of the Committee's Chief
Investigator, Duke Short. Under the agreement, Chairman Thurmond, Short,
Ranking Minority Member Biden, and one staff member designated by Biden have
access.
In a few cases, the Chief Investigator has asked the Department of
Justice for additional information or investigation. Such requests have
generally been accommodated in some fashion. For instance, when the Committee
asked that an FBI agent be detailed to the Committee to assist in the
investigation of a particular nominee for U.S. Attorney, the FBI instead
conducted additional investigation for the Department and the results were
shared with the Committee.
31
Attempts to Further Formalize Procedures
A number of efforts have been made to impose formal, written rules on
the initiation of White House background investigations and the dissemination
of the results, but none have proved enduring. The "White House Personnel
Security Procedures," prepared by the FBI on October 27, 1964, recommended
that all requests for White House investigations, including up-dated
investigations, should be in writing and forwarded to the FBI by the White
House Personnel Security Officer. In a letter dated November 17, 1964,
President Johnson agreed to this recommendation and designated his Associate
Counsel as White House Security Officer.
Guidelines on "White House Personnel Security and Background Investigations"
were prepared in 1975 and 1976 by the Attorney General's Committee on Guidelines
for FBI Information-Gathering and Retention Policies. These Guidelines (see
Appendix D), which for the most part merely formalized existing Bureau proce-
dures, provided that requests by the White House for full-field background
investigations had to be made or confirmed in writing and the official initiating
the investigation had to be specified. The request had to be accompanied by
a statement signed by the subject of the investigation acknowledging his consent.
Information obtained from field investigations requested by the White House
was to be furnished to the White House, and the FBI was requested to keep a
record of all persons to whom such information was furnished. Access to the
investigative files, reports, and summaries was to be carefully restricted to
persons with a need to know, and records were required to be maintained listing
all persons who requested access. Unless there was some indication that the
person under investigation may have committed a crime, the results of the
background investigation could not be disseminated outside the White House
without the express approval of the President or his Counsel or Associate
Counsel. These guidelines were never officially promulgated, however, because
they placed restrictions on the White House that could only be imposed by
Executive Order, but the FBI continues to adhere to their general principles.
An Executive Order setting forth similar procedures was submitted by the
Associate Counsel to the President in March 1975, but never signed by the
President. This proposed two-page Order, entitled "Requests for Security
Investigations, Inspection of Investigative Files and Use of Investigative
Information," permitted the FBI to initiate a background investigation on a
Presidential appointee only on the request of the Counsel or Associate Counsel
to the President made through the White House Security Office, with the
approval of the candidate for appointment. Inspection of background
investigative files was limited to the Counsel and Associate Counsel to the
President, and others designated by the President. Disclosure of background
investigative information was limited to those involved in making Presidential
decisions concerning personnel matters, and any additional disclosure was
prohibited without the express approval of the President or his Counsel.
Restrictions similar to those contained in the proposed Executive Order
and Attorney General Guidelines were agreed to during the transition of both
Presidents-elect Carter and Reagan via virtually identical Memoranda of
Understanding with the FBI. However, these Memoranda of Understanding expired
upon the inauguration of the Presidents-elect. Moreover, neither these
Memoranda of Understanding nor the proposed Executive Order and Guidelines
considered the issue of Congressional access to results of FBI background
investigations. (Appendix E contains a copy of the Memorandum of Understanding
between President-elect Reagan and Attorney General Civiletti.)
32
FOOTNOTES
1/ Study, PP. 184-185.
2/ 40 Op. A.G., 45, 51.
3/ Internal Department of Justice Memorandum from Assistant to the
Attorney General James Rowe, Jr., to the Attorney General,
March 4, 1942 (emphasis in original).
4/ 40 Op. A.G. at 50-51.
5/ Internal FBI memorandum from Director Hoover to the Attorney General,
March 7, 1942.
6/ Internal FBI memorandum from Director Hoover to the Attorney General,
March 25, 1942.
7/ Letter from the Attorney General to Senator Van Nuys, May 26, 1942.
8/ Proposed letter from the Attorney General to Senator Van Nuys,
May 26, 1942.
9/ See Hearing before the Committee on the Judiciary, "Selection and
Confirmation of Federal Judges," U.S. Senate, 96th Congress, 1st Session,
January 25, 1979.
10/ Hearing before the Committee on the Judiciary, U.S. Senate, 97th Congress,
1st Session, January 15, 1981.
33
SECTION IV
THE RELATIONSHIP BETWEEN THE WHITE HOUSE AND THE FBI,
AND THE WHITE HOUSE AND THE SENATE
At the core of a reexamination of the conduct of Special Inquiry
background investigations lies the need to better understand the relationships
between the White House and the FBI, and between the White House and the
U.S. Senate. The purpose of this chapter is to review both of these relation-
ships.
Relationship Between the White House and the FBI
With two major exceptions, the President has delegated to his Counsel's
Office the responsibility for reviewing FBI SPIN reports and making recommen-
dations concerning the background and qualifications of potential nominees.
The exceptions involve nominations for ambassadorships, which have been
RETAIN
delegated to the Secretary of State, and for judgeships, U.S. Attorneys and
ILTIMATE
REVIEW
U.S. Marshals, which have been delegated to the Attorney General. Yet, even
with these exceptions, the final recommendations of each Department are
subject to de novo review, when appropriate, by the Counsel to the President.
The Department of Justice, except in unusual circumstances, plays no role in
the SPIN process; rather, there is a direct relationship between the White
House Counsel and the FBI.
The FBI's objective in SPIN inquiries is to conduct a thorough investi-
gation of the background of prospective senior Executive Branch officials,
and to provide the results to the White House Counsel in a form that can be
easily but effectively reviewed. The investigation focuses principally upon
the character, associations, reputation, and loyalty of the nominees. In
essence, the report should identify any potential problem areas in the
candidate's background SO that they may be considered as part of the total
evaluation of the individual's qualifications to hold high public office.
Notwithstanding the FBI's experience of more than three decades in
conducting background investigations on Presidential nominees, certain misunder-
standings concerning SPIN inquiries can occur between the White House and the
FBI. Inasmuch as Executive Branch routines and relationships with respect to
the SPIN process largely take shape during a Presidential transition and in
the first months of a Presidency, this period must be the focal point of any
effort to clarify or improve the process.
The members of each President-elect's Transition Team and the White
House staff of a newly inaugurated President are often new to the Washington
environment, and unfamiliar with the details of the appointments process.
They are faced with enormous pressures to process a large volume of applica-
tions, identify nominees, and put the new Administration in place as rapidly
as possible. Moreover, they are constrained to avoid or minimize premature
publicity about potential nominees.
The pressures of a Presidential transition are shared by those in the
FSI responsible for conducting SPIN inquiries. They must conduct hundreds of
background investigations on high-level nominees during the first year of the
34
new Administration. This is a tremendous burden; in Fiscal Year 1981, which
covers most of President Reagan's first year in office, the FBI conducted
1,329 SPIN investigations using 50.5 agent work-years. The burden is made
even greater by the short deadlines often imposed. When the Transition Team
and White House officials settle on a nominee for an important or controversial
position, they usually want the background investigation completed promptly
so that the President can begin his term with his own team in place. When a
nomination must be confirmed by the Senate, a date for a Committee hearing
may be set even before the background investigation has begun. Sometimes,
short deadlines are set by the Transition Team and White House staff to
lessen the risk that news of the appointment will leak before it is announced
or that erroneous rumors will gain currency.
The imposition of short deadlines inevitably has an impact upon the
conduct of a background investigation. When the Transition Team requests the
FBI to do in 5 days what generally takes 14, it must recognize that it is
getting a "best efforts" investigation. Perhaps most troubling, this effect
NO
may not be observable to those unfamiliar with background investigations,
because it may result from subtle shortcuts rather than glaring omissions.
For instance, interviews that would generally be conducted in person may be
handled by telephone, where an individual may be less likely to be candid and
open. Leads that are not likely to be productive, but conceivably may open
new avenues of investigation, are less likely to be pursued.
The problem of short deadlines points to a more fundamental issue in
the SPIN process--the different institutional interests of the FBI and the
Transition Team. The FBI's interest is to conduct a high-quality SPIN
investigation and provide the results in a clear, complete, and timely manner
to the Transition Team. It is not interested in whether or not the report is
favorable to the nominee, as long as it is accurate and fair. The Transition
NO
Team, of course, is deeply interested in the content of the report; it does
not want to nominate an individual who will embarrass the President or not
serve him with integrity. However, before an individual's name is provided
to the FBI for background investigation, his credentials and talents have
already been carefully examined by the Transition Team and found worthy of
consideration for an appointment. Once this decision is made, the background
investigation may be treated as a procedural hurdle to be overcome without
complications, particularly if they result in delay and controversy. Ideally,
the Transition Team should view the background investigation as an opportunity
for a more informed selection and not merely as a necessary formality in
the selection process.
This difference in institutional interests is most pronounced when a
background investigation is requested after public announcement of the
nominee's name. A Common Cause critique of the nomination process in the
Carter Administration addressed this phenomenon. It cited a Senate staff
member's criticism that, once a decision to nominate someone had been made by
the President, the Counsel's Office was placed in a defensive posture and
became an advocate for the nominee, a process that did not lead to meaningful
scrutiny Moreover, individuals may be more reluctant to provide the FBI
with information adverse to the nominee if the President has already formally
35
declared his selection. For these reasons, premature public announcement is
discouraged by the White House Counsel's Office, but it can sometimes not be
helped, such as when an official is removed and his replacement must be
immediately named or when false rumors of an appointment create a political
problem for the Administration.
Another major problem faced during transition is that the Transition
Team handling this onslaught of appointments generally has little or no
benefit of the experience gained by earlier White House staffs in reviewing
SPIN reports and making applicant determinations. As a result, each new
Transition Team and White House staff must be told anew about the scope and
depth of a SPIN investigation, so that they understand what it is--a series
of interviews and record checks--and what it is not--a certification that the
nominee is fit to hold office. They must be advised how to assess the
reliability and knowledge of confidential sources providing derogatory
information, and they must be informed that the FBI can seek to resolve their
questions either by providing them access to more detailed investigative
reports or by conducting additional investigation. Moreover, they should
understand their prerogative to request the FBI to broaden its SPIN investigation
beyond its usual confines to focus on certain areas of concern for a particular
nominee, such as potential conflicts of interest.
The FBI in the past has briefed relevant Transition Team members concerning
the SPIN process, but the briefings do not appear always to have achieved the
necessary degree of understanding. It would be helpful if the FBI prepared a
detailed briefing book describing the SPIN process and the relationship
between the Transition Team and the FBI. The oral briefing provided by the
Bureau could then correct misunderstandings, answer questions, and build the
personal rapport that will be essential during this critical time. The
Section Chief and Unit Chief in charge of SPINs must continue to be available
to the Transition Team on a daily basis.
One additional measure might be taken to enhance the White House's under-
standing of the SPIN process. At the present time, senior officials of
different offices within the Department of Justice have separate responsibility
for the review of individual categories of DAPLI reports, for example,
judgeships and U.S. Attorneys. No one official in the Department has an
overall review role or central coordinating responsibility. If one official
was selected to provide a central point of control within the Department for
DAPLI reports, his experience and insight would also be available to the
White House Counsel's Office if it sought his advice. Of course, this DAPLI
coordinator would play solely an advisory role in SPIN nominations and would
not supervise, coordinate, or review SPIN investigations or reports.
The problems of short deadlines and misunderstandings grow less serious
after the early months of an Administration; by then, the pace of new
appointments slackens and the Counsel to the President becomes more accustomed
to the SPIN process. However, one problem that does not face the Transition
Team emerges once the new President takes office--the absence of a formal
document governing the authorization of a SPIN investigation, the steps taken
to protect the privacy of SPIN reports, and the safeguards provided for those
interviewed who requested confidentiality. The formal document could be in
the form of a memorandum of understanding, or possibly an Executive Order or
other official guidelines.
36
Each of these areas was covered during the transition periods of both
Presidents-elect Carter and Reagan by a Memorandum of Understanding signed by
the President-elect and the Attorney General. The Memorandum of Understanding
protects against background investigations being requested for improper
purposes by requiring the request to be in writing from the President-elect
or his designee, and to be accompanied by the written consent of the person
to be investigated. It protects against the unnecessary dissemination of
SPIN reports by restricting access to the material to the President-elect,
his designated representatives, and others directly involved in deciding the
individual's suitability for the position. To give teeth to the need-to-know
requirement, it prohibits copies to be made of the reports, mandates that
records be kept of who is given access, and requires the reports to be returned
to the FBI if a decision is made not to employ the candidate. Finally, the
Memorandum of Understanding recognizes the interest of those interviewed in
confidentiality and the importance of such confidentiality to the success of
a background investigation by promising to keep identifying information
confidential to the extent permitted by law.
However, the Memorandum of Understanding does not apply beyond the
transition, and efforts to replace it with an Executive Order have not been
pursued. Guidelines were formulated under Attorney General Levi, but they
were never enacted by Executive Order. Fortunately, the absence of an Executive
Order has not yet created significant problems, because both the White House
and the FBI informally follow the procedures embodied in the Memorandum of
Understanding. Yet, there remains a need for such a document to serve as a
safeguard against possible misuse and as a formal statement of the role and
responsibilities of each participant in the SPIN process.
Relationship Between the White House and the Senate
As described in Section I, the appointment of such high Government
officials as Cabinet Secretaries, Ambassadors, and Judges requires the
President to nominate and the Senate to confirm. To perform these separate
constitutional roles, the President and the Senate each need accurate and
candid information about the character and integrity of the nominee. It is
the FBI's task to investigate the background of the nominee and provide this
essential information. TO THE PRESIDENT
The need of the President and the Senate for the results of the FBI's
investigation, however, must be balanced with two other important considerations--
the nominee's interest in not having his reputation damaged by unsubstantiated
allegations which may arise during the background investigation and the
interest of those interviewed in not having their identities revealed. These
latter interests are consistent with the larger institutional interests of
the White House and the Senate. Leaks of information that unfairly challenge
the integrity and reputation of nominees harm the innocent and discourage
individuals of ability from accepting positions in Government. Breaches of
promises of confidentiality injure those individuals who often were most
candid in discussing the nominee and make future background investigations
less effective by discouraging that candor in others.
37
E.G.?
Unfortunately, individuals in both the White House and the Senate may
sometimes lose sight of these larger interests in focusing upon transient
political or personal interests, and publicly reveal information that should
best remain private. The Transition Team, in its Memorandum of Understanding
with the Attorney General, has sought to limit this danger by imposing the
restrictions cited above.
The safeguards of limited access and accountability provided in the
Memorandum of Understanding should be adopted by the White House and the
Senate in a formal agreement governing the consideration of all advise-and-
consent nominations. These matters are too important to be left to informal
understandings or ad-hoc agreements with different Committee Chairmen.
Moreover, for many nominations, time is of the essence, and an agency should
not be left without leadership while the White House and the confirming Senate
Committee hammer out their differences concerning access to background material.
A single agreement, signed by the President and approved by the Senate,
should govern the manner in which every Committee receives and protects
NO
information regarding the background of an advise-and-consent nominee.
Currently, the FBI provides the Office of the Counsel to the President
with a summary memorandum reporting the results of the SPIN investigation and
with the full text of interviews containing derogatory information. Once
this information is provided to the White House Counsel, the FBI's role in
the nomination ends, unless, of course, additional information or investigation
is requested. The FBI plays no part in providing the necessary information
to the Senate; that task is handled by the White House Counsel. If the full
text of derogatory interviews is provided to the Senate, the FBI, should have
an opportunity to excise the text to protect the confidentiality of the
individuals interviewed.
It is essential to preserve the FBI's role as an impartial, nonpartisan
investigator providing background information to the President concerning a
political nominee for high office. First, it is only fair that the President
have the benefit of this information before it reaches the Senate. He enjoys
the constitutional prerogative to nominate, and he deserves the opportunity
to study the SPIN report and decide whether to pursue the nomination or
withdraw it. Only if he decides to pursue it need the information be provided
TO
to the Senate. Second, the FBI should not be asked to provide SPIN information
GIVEN
directly to the Senate. The appointment of an advise-and-consent nominee
THE
requires the interplay and ultimate agreement of the White House and the
SEPATE
ALL.
Senate. If the Senate believes it needs additional information to carry out
its advise-and-consent function, it should request such information from the
White House. If the White House concurs, it can request the FBI to provide
it with additional information and pass on this information to the Senate.
If it demurs, it can negotiate a satisfactory arrangement with the Senate,
recognizing that the fate of the nomination may lie in the balance. The FBI
should not be drawn into this essentially political dispute. The FBI has no
stake in the appointment and placing it in this position will only endanger
the independence and objectivity upon which both the White House and the Senate
must necessarily rely.
38
Similarly, the FBI should not be requested by the Senate Committee
considering confirmation to testify regarding the background investigation
of the nominee. Such testimony almost inevitably places the FBI in the
uncomfortable and untenable position of being asked to characterize the
fitness of the nominee. The FBI investigates the background of a nominee;
it is neither its role nor does it have the special expertise to determine
his fitness for office. Such a determination must be left to White House
officials and the Senate on the basis of information provided by the FBI.
Moreover, it is extremely difficult for an FBI official during Senate testimony
to answer questions candidly and completely, and, at the same time, protect
the identity of confidential sources. This delicate task is best performed
in writing, where words can be chosen more carefully and agents involved in
the background investigation can examine the work product to ensure that the
identities of sources cannot be determined from the information provided.
Putting all information in writing also means that the White House can
effectively serve as the conduit for both the questions and the answers,
thereby giving the President the benefit of the information before it goes
to the Senate and protecting the FBI from being caught in the middle of a
political dispute.
39
FOOTNOTES
1/ Bruce Adams and Kathryn Kavanaugh-Baran, Common Cause, Promise
and Performance: Carter Builds a New Administration (Lexington,
Massachusetts; Toronto: Lexington Books, D.C. Heath and Company,
1979), p. 94.
40
SECTION V
CONCLUSIONS AND RECOMMENDATIONS
Conclusions
The FBI and the White House have developed a workable arrangement for
investigating the backgrounds of Presidental nominees.
A request for a background investigation is made in writing by the Office
of the Counsel to the President, accompanied by appropriate waivers from the
prospective nominee. This request specifies whether or not the position is
subject to Senate confirmation. The scope of the basic SPIN inquiry is
formally set forth, but the White House has the opportunity to state more
precisely its requirements or priorities in particular cases.
The FBI imposes a usual deadline of 10 workdays on its field offices to
complete the SPIN investigation and attempts to provide the White House
Counsel's Office with the results of the investigation in 25 calendar days.
The results of SPIN inquiries are furnished in a summary memorandum
supplemented with the complete text of interviews containing derogatory
information. The names of those who requested that their identity not be
disclosed outside the FBI are not furnished to the White House. The White
House Counsel's Office may request the FBI to conduct additional investigation
if deemed necessary, or may ask to review the investigative reports, albeit
with appropriate safeguards to preserve the confidentiality of sources. The
FBI provides assistance to the White House in assessing the weight to be
given to information furnished by persons afforded confidentiality.
When the President decides to present the nomination to the Senate for
advice and consent, the White House Counsel provides the appropriate Senate
Committee with the FBI background information necessary to make an informed
decision about confirmation.
These procedures are sensible and should be continued. However, short-
comings and misunderstandings remain in the SPIN process which need to be
addressed as recommended below.
Recommendations
1.
Formalization of Procedures
There have been a number of attempts over the years to formalize SPIN
procedures, including the preparation of guidelines and the drafting of an
Executive Order, but none have been formally implemented. The only exceptions
have been pre-inaugural Memoranda of Understanding between the President-elect
and the Attorney General, which have no formal application beyond the transition
period.
41
The absence of an Executive Order has not yet created significant
problems, because both the White House and the FBI informally follow the
procedures embodied in the Memorandum of Understanding. Yet, there remains
a need for such a document to serve as a safeguard against possible misuse
and as a formal statement of the role and responsibilities of each participant
in the SPIN process. Formalization of mutually agreed-upon procedures,
which could either be modified or adopted in whole by each incoming
Administration, would help in resolving misunderstandings which have arisen
over the use and interpretation of SPIN inquiries, as well as permit a degree
of flexibility over time.
Recommendation: Procedures governing the initiation of background investiga-
tions of White House nominees and dissemination of the results should be
established by Executive Order and appropriate Attorney General Guidelines.
2. Investigative Deadlines
The Transition Team and the staff of a newly inaugurated President
are faced with enormous pressures to process a large volume of applications,
identify nominees, and put the new Administration in place as rapidly as
possible. These pressures are shared by those in the FBI responsible for
conducting SPIN inquiries. Hundreds of background investigations on high-level
nominees are conducted during the first year of a new Administration. This
is a tremendous burden, one that is made even greater by the short deadlines
often imposed.
When the Transition Team and White House officials settle on a nominee
for an important or controversial position, they usually want the background
investigation completed promptly. When a nomination must be confirmed by
the Senate, a date for a Committee hearing may be set even before the background
investigation has begun. Sometimes, short deadlines are set by the Transition
Team and White House staff to Tessen the risk that news of the appointment
will leak before it is announced or that erroneous rumors will gain currency.
The imposition of short deadlines inevitably has an impact upon the
conduct of a background investigation. When that happens, the Transition Team
must recognize that it is getting a "best efforts" investigation.
Recommendation: To the extent possible, the White House Counsel's Office
should avoid the imposition of short investigative deadlines and allow adequate
time for complete and comprehensive background investigations of all nominees.
3. Scheduling of Confirmation Hearings
The White House Counsel's Office comes under particular pressure
when a background investigation is requested after public announcement of the
intended nomination or when confirmation hearings on the nominee have been
scheduled prior to completion of the background investigation. Reviewing
officials in the White House may be forced prematurely into a defensive
posture or an advocacy position on behalf of the nominee. From the FBI's
perspective, an individual being interviewed may be more reluctant to provide
information potentially adverse to the nominee if the President has already
formally declared his selection.
42
Recommendation: As a general rule, the name of a nominee should not be
formally announced nor should confirmation hearings be scheduled until the
White House Counsel's Office has had an opportunity to review the results of
the background investigation.
4. Formal White House-Senate Agreement
The constitutional arrangement regarding Presidential appointments
clearly contemplates a spirit of accommodation and cooperation between the
Executive and Legislative Branches. Therefore, the policies governing the
President's submission of nominations to the Senate, and the scope of the
background information which is provided, must take into account the sharing
of power which governs the appointment process.
To perform their respective constitutional roles, the President and the
Senate must have accurate information about the character and integrity of a
nominee. These needs, however, must be balanced both with the nominee's
concern that his reputation not be damaged by unsubstantiated allegations and
with the sensitivity of those interviewed to not having their identities
revealed.
The safeguards of limited access and accountability are too important to
be left to informal understandings or ad hoc agreements with Committee
chairmen. An, agreement signed by the President and approved by the Senate
should govern the manner in which every Committee receives and protects
information regarding the background of a Presidential nominee.
Recommendation: Each Administration should reach a formal agreement with the
Senate through which all SPIN material necessary for the fulfillment of the
"advise and consent" function would be provided under conditions which secure
the confidentiality of all sensitive information, sources, and methods.
5. Role of the FBI
The Donovan matter resulted in the unprecedented occurrence of
FBI officials testifying at the Senate confirmation hearing as to the conduct
and results of a background investigation. This case was also unique in two
other respects. It was the first time that the FBI has furnished such informa-
tion directly to the Senate, rather than by way of the White House, and it
was the first occurrence of Senate committee staff members being permitted
to interview an FBI source in a background investigation.
It is essential to preserve the FBI's role as an impartial, nonpartisan
investigator providing background information to the President concerning a
political nominee for high office. This is best accomplished when the FBI
provides information concerning a potential nominee to the White House Counsel's
Office, which would then forward this information to the appropriate Senate
Committee. The appointment of an advise-and-consent nominee requires the
interplay and ultimate agreement of the White House and the Senate. The FBI
should not be drawn into this essentially political dialogue. The FBI has
no stake in the appointment and placing it in this position will only endanger
the independence and objectivity upon which both the White House and the
Senate must necessarily rely.
43
Nor should the FBI be requested by the Senate Committee considering
confirmation to testify regarding the background investigation of the nominee.
Such testimony almost inevitably places the FBI in the uncomfortable and
untenable position of being asked to characterize the fitness of the nominee.
The FBI investigates the background of a nominee; it is not its role, nor
does it have the special expertise, to determine his fitness for office.
Such a determination must be left to White House officials and the Senate on
the basis of information provided by the FBI.
Recommendation: The FBI should be neither expected nor requested to provide
background information from SPIN investigations directly to the Senate.
The Senate should obtain the information it requires directly from the White
House in accordance with mutually satisfactory agreements.
6. Departmental Applicant Coordinator
The Department of Justice has traditionally played no role in the SPIN
process; the relationship has always been a direct one between the White
House and the FBI. It is the Committee's view that this relationship be
continued.
The Department of Justice has had, however, a longstanding responsibility
for the review of individual categories of Departmental Applicant investigative
reports, e.g., for judgeships and U.S. Attorneys. This responsibility has
been decentralized within the Department, with no single office or individual
having an overall review role or central coordinating function. If such an
official were designated, there would result not only inherent advantages
for the Department's internal review process, but also for the White House
Counsel's Office should advice on such matters be sought.
Recommendation: The Department of Justice should designate an individual as
a central review and coordination official for the Departmental Applicant
process.
44.
APPENDIX A-1
U.S. Department of Justice
STATES
Federal Bureau of Investigation
Office of the Director
Wesnington, D.C. 20535
June 22, 1982
Honorable William French Smith
The Attorney General
Washington, D.C.
JUN 22 3 22 PM '82
OFFICE RECEIVED THE RERAL
JC
Dear Mr. Attorney General:
In personal discussions with you, I have expressed my
concern about changing perceptions of the nature of a Special
Inquiry (SPIN) on Presidential nominees and the need for a
reexamination of the purpose and procedures under which such
inquiries take place. I now request your guidance and direction
in establishing a Departmental study committee to review the
SPIN process.
Historically, SPIN investigations are conducted at the
request of the White House or incoming Administration pursuant
to a Memorandum of Understanding between the Attorney General
and the President-elect. They are usually conducted on a very
short time frame established by the White House or incoming
Administration, as the case may be. They consist principally
of running FBI indices, checking with other Government agencies
with whom the nominee may have had a past association, and con-
ducting a series of interviews, leads for which are initiated
from a nominee's resume prepared by the nominee. Additional
leads are then developed and additional interviews are conducted.
Primary emphasis has been upon information pertaining to character
associates, reputation and loyalty. Credit checks may be con-
ducted, but financial information is usually obtained by the
White House through other sources.
In the past, the information developed in this manner
has been furnished in summary form on letterhead memorandum to
the designated official in the White House. Additional informatio
Honorable William French Smith
is furnished as requested or as it comes into the FBI and is
pertinent to the inquiry. It has in the past been the responsi-
bility of the White House to determine the manner and extent to
which this information is available to the Committee considering
the confirmation. Senate investigators are free to conduct
follow-up or independent investigation if they are instructed to
do SO by their committee. I am advised that the Donovan hearing
is the first occasion in memory in which an FBI Agent was called
upon to provide testimony to the committee or express a view as
to the content of the investigation. Thus the committee appears
to have cast the FBI in a different role than it has been
accustomed to in the past and raises significant questions about
the obligations and scope of disclosure.
If a "best efforts" inquiry on relatively short time frame
to assist the President in his nominating function is to be receive
in the Senate as a certification of completeness, then it is
obvious that a change in procedures must take place, including
in some cases the application of additional time and resources.
Considerable thought must be given to the handling of unproved
derogatory information. Past history dictates that the FBI must
not be associated with the dissemination of non-pertinent, unproved
scurrilous information. Substantially better procedures must be
developed with Senate committees to safeguard the integrity of
the process.
The FBI is prepared to be fully responsive to our responsi-
bilities in this area, but it is apparent that there are differing
perceptions of the nature and scope of that responsibility. That
may well go even to the nature and scope of the advise and consent
function.
I therefore request your guidance and suggest that the
first step might be the formation of a study committee within the
Department and including appropriate representatives of the FBI.
Respectfully,
William H. Webster
Director
- 2 -
APPENDIX A-2
Office of the Attorney General
TRO
DOCUMENT
Washington, I. C. 20530
JUSTITIA
June 25, 1982
Honorable William H. Webster
Director
Federal Bureau of Investigation
9th and Pennsylvania Avenue, N.W.
Washington, D.C. 20535
Dear Bill:
Thank you for your letter of June 22, 1982, suggesting that
a study committee be formed within the Department of Justice to
review the purpose of and procedures followed in Special Inquiries
on Presidential nominees (SPIN).
I agree that reexamination of this process is warranted in
the light of changing perceptions about its nature and scope.
Your suggestion that a Departmental study committee be formed is
an excellent one and will be promptly acted upon.
I am, therefore, asking Associate Deputy Attorney General
Stanley Morris, who will chair the committee, to proceed expedi-
tiously. The committee membership will include representatives
from the Attorney General's office, the Associate Attorney General's
office, the Director of the Executive Office for United States
Attorneys, a representative of the Office of Legal Counsel and
two representatives, designated by you, of the Federal Bureau of
Investigation. The committee will report its findings and recom-
mendations to me within 60 days of its first meeting.
I am confident that this committee will greatly assist us in
clarifying the issues and in finding solutions for any problems
that may exist.
Sincerely,
Bill
William French Smith
Attorney General
APPENDIX. R
FBI BACKGROUND INVESTIGATIONS CONDUCTED AT THE REQUEST OF
THE WHITE HOUSE: SCOPE AND AREAS OF COVERAGE
Scope
Entire adult life, usually commencing with graduation from high school. Occasion-
ally, however, the FBI does investigate the period during which the applicant was
in high school, when SO requested by The White House. If the FBI has previously
conducted a full-field applicant-type investigation concerning the applicant, it
will cover the period since the prior investigation. At the specific request of
The White House, the FBI does update work of other agencies.
Areas of Coverage
Birth. Verification of date and place of birth. This is normally done from school,
employment, military or other records. If a discrepancy is found, or some particular
reason exists, the FBI will check vital statistic records.
Naturalization. Court and/or INS records are checked if applicant and/or present
spouse was/were not U.S. citizens at birth. The FBI normally does not conduct
such investigation concerning other close relatives.
Education. Attendance and degrees earned at all institutions of higher learning
are checked. In White House cases, the FBI verifies high school attendance, no
matter how long ago, if there was no education beyond high school. Instructors
and fellow students, if identifiable, are interviewed.
Marital Status. Marriages are not verified; however, divorces are. Divorced
spouse(s) of applicant are interviewed if their locations are known.
Employment. Generally all employments are verified, and periods of unemployment
are accounted for. Supervisors, co-workers, and subordinates are interviewed.
Military Service. Service record is checked. Interviews will normally be con-
ducted at any places of assignment within a period of approximately three years
prior to the investigation.
Neighborhoods. Interviews are conducted in neighborhoods of residences for preced-
ing five-year period. Occasionally, the FBI does not conduct neighborhood inquiries
during investigations of highly prominent persons.
References and Associates. All listed references and associates (normally a total
of six on SF 86) are interviewed.
Other Interviews. In Presidential cases, the FBI attempts to interview a total
of not less than thirty to thirty-five persons (including persons in the categories
previously mentioned) who are in position to knowledgeably comment concerning the
appointee. In staff and access cases, the FBI strives for approximately twenty
interviews. These totals are appropriately scaled down in "update" investigations.
- 2 -
Credit Checks. Records of credit bureaus covering all places of residence, employ-
ment and education for the last seven years are checked.
Arrest Records. Records are checked at all places of residence, employment and
education for the entire adult life.
Close Relatives. Defined as spouse, parents, siblings, and children. Records of
law enforcement agencies, covering current places of residence of adult close
relatives are checked. The Bureau also checks FBI field office files covering
places of current residences.
National Agencies. Division of Personnel Investigations, Office of Personnel
Management; United States Secret Service, and FBI central files and Identification
Division are checked in all White House cases. Other agencies will be checked
depending upon appointee's employment/military background.
Miscellaneous. Normally, no investigation is conducted in areas other than the
fifty States, U.S. Possessions, and occasionally in Canada if appointee has had
significant educational or employment experiences in Canada. Records of CIA are
checked if appointee has studied or been employed abroad for significant periods
of time.
Updated Investigations. Essentially, in updates, the FBI verifies all educational,
military and employment activity occurring since prior investigation. A divorce
since prior investigation is checked and former spouse interviewed. Credit, arrest,
national agency and FBI record checks are brought up to date. Neighborhood,
reference and associate interviews are conducted. Law enforcement checks are
again made on close relatives.
APPENDIX C
PART II
SECTION 17. APPLICANT AND EMPLOYEE INVESTIGATIONS CONDUCTED
FOR OTHER GOVERNMENT AGENCIES - GENERAL INSTRUCTIONS
17-1
BASIC AUTHORIZATION
Bureau is required to conduct applicant-type investigations of
persons seeking Government employment and employed in Federal Government as a
result of laws and Executive orders in certain categories and by agreements
between Bureau, Department, President, and other governmental agencies. In
addition, Bureau is required to conduct investigations in certain instances of
nongovernmental employees or applicants (1) whose duties require access to
highly restricted data, and (2) U.S. citizens employed or being considered for
employment by public international organizations. Specific information
concerning authority to conduct these investigations will be furnished by
FBIHQ to field offices upon request. The term "applicant," as used
hereinafter, is synonymous with the term "employee."
17-2
CLASSIFICATIONS COVERED
The following classifications are covered by instructions in this
section and special instructions relating to each classification are contained
in appropriate sections of Part I of this manual:
(1) 73 - Application for Pardon After Completion of Sentence
(APACS)
(2) 77 -
(a) U.S. Courts Applicant (USCAPLI)
(b) Departmental Applicant (DAPLI)
(c) Maintenance Employee (name of field office)
]
[(d) Contract/Noncontract Personnel]
(3) 116 - Department of Energy - Applicant or Employee (DOE-A or
DOE-E); Nuclear Regulatory Commission - Applicant or Employee (NRC-A or NRC-E)
(4) 138 - Loyalty of Employees of the United Nations and Other
Public International Organizations (LEUN) (EO 10422)
(5) 140 - Security of Government Employees (SGE) (EO 10450)
(6) 151 - Referrals from Office of Personnel Management (OPM)
(a) Peace Corps (ACTION-OPM)
(b) Department of Energy (DOE-OPM)
(c) National Aeronautics and Space Administration (NASA-OPM)
(d) Nuclear Regulatory Commission (NRC-OPM)
(e) U.S. Arms Control and Disarmament Agency (ACDA-OPM)
(f) International Communication Agency (USICA-OPM)
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(7) 161 - Special Inquiries for the White House, Congressional
Committees, and other Government Agencies.
17-3
ADMINISTRATIVE PROCEDURES
17-3.1
Initiation of Investigation
Personal history data as received by FBIHQ is forwarded to field.
If data is inadequate, see "Who's Who in America"; "Who's Who in (State, City,
or Section)"; "Who's Who in (Profession)"; Directory of Directors;
Martindale-Hubbell Law Directory; and other professional directories.
Information in Identification Division files and FBIHQ files is sent to field
if pertinent for investigation and inclusion in report.
17-3.2
Assignment of Cases
Must be searched, opened, and assigned immediately. Investigation
is to commence immediately.
17-3.3
Indices Searches
FBIHQ indices in applicant cases are searched only against
applicant's name, names of deceased relatives, and names of relatives residing
in foreign countries. Each field office must carefully search names of the
following against indices:
(1) Applicant - Include variations and additional names developed
during investigation. Advise FBIHQ and interested offices of additional names
developed.
(2) Close relatives residing in field office territory - Search
must include all names used by relatives. Include maiden name of applicant's
spouse. Questionable identity must be resolved. Include in search not only
names of close relatives known when investigation was initiated, but also
those identified during investigation. Not necessary to search names of
relatives under 15 years of age.
(3) References - Name should be searched through office indices
where reference resides. Names may be searched only as they appear in
reference material furnished. Searches of variations in name and initials not
required, unless developed during investigation.
(4) Others - It may often be necessary to search against indices
names of other persons and names of organizations with which applicant has
been identified. Where common sense dictates, names of persons with whom
[ applicant has been closely associated during[his/her]adult life, such as
roommates, close social friends, divorced spouses, and others where
relationship would warrant, must be searched against field office indices.
17-3.4
Deadlines
(1) Deadline date is date report to be received at FBIHQ. All
deadlines are figured from date of order letter and cannot be changed without
FBIHQ authority.
(2) Deadline must be met unless delay beyond office control.
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(a) If deadline will not be met and no administrative
action deemed warranted, form FD-205 or other communication must reach
FBIHQ by deadline date advising: Reason for delay; when report will reach
FBIHQ; and, no administrative action warranted - This decision must be
made by SAC or ASAC.
(b) If deadline will not be met and adminstrative action
deemed warranted, letter must reach FBIHQ by deadline date advising:
reason for delay; when report will reach FBIHQ; type of administrative
action recommended and reason therefore; and, identity of personnel involved,
together with memoranda of explanation from such personnel.
17-3.5
Prior Applicant Investigation
If field files disclose previous applicant-type investigation
conducted by Bureau, following steps should be taken in all cases:
(1) Bring previous investigation thoroughly up to date and
supplement it as necessary so total scope of investigation will conform
in all respects to current standards. Recontact persons previously
interviewed who furnished derogatory information (if such persons are
in a position to furnish current pertinent information and if such inquiry
is practicable.)
(2) If all leads were covered in previous investigation, RUC
case by routing slip SO advising FBIHQ.
(3) If previous investigation was made within six months pre-
ceding receipt of new request and if it was then complete, conduct no
investigation and RUC.
17-3.6
Leads for Other Offices
(1) Set out leads for other offices immediately when they become
known during investigation. Use most expeditious means of communication
commensurate with economy to meet deadline.
(2) Furnish FBIHQ copy of communications setting out leads.
(3) In general, following information should be included in
communications setting out leads for other offices which have not received
copy of FBIHQ letter initiating investigation:
(a) Name, aka's, and any other title information, such
as zone designations in title of 116 cases
(b) Character
(c) Bureau deadline
(d) Any data necessary to identify applicant, such as
birth data, description, and social security number if lead is to check
employment
(e) Specific lead
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(f) Brief description of any derogatory information
developed.
17-3.7
Receipt of Additional Information in Closed Case
(1) Recheck office indices.
(2) Determine identities of original sources of all new deroga-
tory data and interview if possible. Furnish FBIHQ information without
delay in letterhead memorandum or supplemental report. Use teletype if
case warrants, such as Presidential appointee.
(3) If circumstances warrant, e.g., additional investigation
appears involved and cannot be immediately completed, advise FBIHQ by
appropriate means prior to initiating additional investigation.
(4) If indication individual no longer Government employee,
verify current employment immediately at inception of investigation.
17-3.8
Discontinuance of Investigation
If information is received indicating investigation should be
discontinued, promptly notify FBIHQ and interested offices to hold investi-
gation in abeyance. Thereafter, FBIHQ will contact interested agency on
Headquarters level for confirmation regarding employment and will immediate-
ly advise the field regarding discontinuance. If instructed to discontinue,
submit RUC communcation to FBIHQ containing results of investigation
conducted to date.
17-4
OBJECTIVES OF INVESTIGATION
(1) Character - actions and statements revealing person's attitude
trustworthiness, reliability, and discretion; activities revealing lack
of such qualities
(2) Loyalty - actions and statements revealing person's attitude
and allegiance to U. S. and its constituted form of government or
sympathies with any foreign government or ideology
(3) Associations - types of persons, groups, organizations, or
movements with which the person has been associated, with particular concern
as to whether any of his associations have been of disreputable or disloyal
nature.
(4) Qualifications and Ability - inquiries concerning qualifica-
tions and ability not necessary except in certain type of cases (see specific
classification) or unless so instructed by Bureau in a specific case. If
necessary, questions should be directed toward obtaining all available data
regarding past employment experiences, positions held, and duties and
responsibilities involved in those positions. (For purposes of our investi-
gations, ability is defined as one's capacity or competence, native or
acquired, to perform well in an occupation or field of employment. Comments
in this regard should cover past and present employment.)
17-5
GENERAL INSTRUCTIONS
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(1) Results are furnished other Government agencies for examina-
tion and adjudication.
(2) Investigation must be painstakingly exact, fair, and
unbiased.
(3) Interviews must be thorough and exhaustive and include
persons in same age group as applicant.
(4) Purpose of interviews is to get information, not to give
information. Avoid possibility for accusation of character assassination
or spreading of rumors.
(5) Do not convey impression that person investigated is under
suspicion or that investigation is of criminal or subversive nature.
(6) Advise persons interviewed that investigation is personnel-
type background inquiry conducted because individual is under consideration
for Government employment, employment by a public international organiza-
tion, or may have access to restricted or secret information in which
Government has interest.
(7) Unless SO instructed by FBIHQ, do not disclose identity of
requesting agency or position involved.
(8) No such thing as routine investigation. Imperative each
case be approached with investigative inquisitiveness to secure all
information both favorable and unfavorable.
17-6
SCOPE OF FULL FIELD INVESTIGATIONS
17-6.1
Birth
(1) Ascertain date and place of birth. This may be done from
such sources as school and employment records.
(2) Verify at bureau of vital statistics when -
(a) Parents foreign born
(b) Investigation develops inconsistencies in birth data
(c) Investigation otherwise indicates necessity for
verifying birth data
17-6.2
Naturalization
If applicant or spouse foreign national or obtained citizenship
through naturalization or naturalization of parents, check Immigration and
Naturalization Service or court records.
17-6.3
Education
(1) Verify college attendance and degrees. Detailed record
of studies and grades not desired; (however, report overall grade point
average and class standing, if available.) Interview teachers and fellow
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students; mere verification of attendance is not sufficient.
(2) Cover high school attendance only if it was within preceding
six years, or if special reason exists for doing SO.
17-6.4
Marital Status
(1) If any question, resolve through appropriate records.
(2) Verify divorce and determine reasons if pertinent.
(3) Interview divorced spouse if appropriate.
17-6.5
Employment
(1) Verify all employments, including any additional ones
developed during investigation; examine all pertinent files at places of
employment; ascertain why employment was terminated in each instance.
Ascertain dates of employment and positions held; note discrepancies with
questionnaire or application form. If employment records are unavailable for
extended period, set out that fact in report, together with results of efforts
to verify employment through other sources; this will eliminate delays
resulting from unavailable records. Interview supervisors, fellow employees,
and other appropriate personnel.
(2) If applicant has been in business for himself/herself
interview competitors and neighboring businessmen/businesswomen.
(3) Periods of unemployment must be investigated and accounted
for.
17-6.6
Military Service Records
(1) Review if indication applicant served in armed forces.
(2) Report complete military record, including honors bestowed,
type of discharge received, and Reserve status.
(3) If military records have been destroyed, verify service
through other means.
17-6.7
Neighborhoods
(1) Interview neighbors at applicant's places of residence during
past five years.
(2) If derogatory information is developed, interview persons in
logical neighborhoods without limitation to preceding five years.
(3) Do not waste effort in endeavoring to conduct inquiries in
neighborhoods where applicant resided for very brief periods, such as one
month in a trailer camp.
[(4) Favorable neighborhood may be summarized; however, any
derogatory information developed should be set forth in detail. Include,
identity, address, and number of years known applicant, for each person
[
contacted.]
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17-6.8
References and Associates
Interview all references and associates except:
(1) Do not interview individual concerning whom information is
known which would preclude interview, but if appropriate, characterize
individual.
(2) An isolated individual who cannot be contacted without
expenditure of unreasonable time and travel, or individual whose
unavailability for other reasons would delay investigation, need not be
interviewed provided satisfactory investigation can be conducted without
interview. When such an individual is not interviewed, show in details of
report individual unavailable and amplify circumstances on cover page if
needed. If derogatory information exists concerning a reference or associate,
ascertain nature and extent of his/her association with applicant.
17-6.9
Relatives
(1) Each field office must develop identity of all close
relatives and appropriately advise each interested field office. Close
relatives under ordinary circumstances include spouse, parents, brothers,
sisters, and adult offspring. Special instances, such as more distant
relatives who occupy same residence as applicant, will require broadening of
this definition.
(2) Independent investigation to verify residence is not
normally conducted on close relatives. Derogatory allegations, incomplete
police records, or indefinite places of residence may require discreet
inquiries of informants and reliable sources to verify or refute allegations,
clarify a police record, or fix a current place of residence. If derogatory
information exists concerning relative, ascertain nature and extent of
association with applicant.
17-6.10
Law Enforcement Agencies and Credit Agencies
(1) Check applicant's name against files of local law enforcement
[ agencies and/the files of credit record repositories in all localities
[
covering residence, education and employment; however, credit inquiries should
[
be limited to the most recent seven-year period. To comply with the Right to
Financial Privacy Act of 1978 (RFPA) in accessing records concerning
applicant, the applicant is to be furnished with a copy of Department of
Justice (DOJ) letterhead memorandum captioned, "Statement of Customer Rights
under the Right to Financial Privacy Act of 1978," which must be executed by
the interviewing Agent. The applicant must execute form DOJ-462 captioned,
"Customer Consent and Authorization for Access to Financial Records. Copy of
executed DOJ-462 should be furnished to each office where financial records
are to be reviewed. For effective use of this customer consent and
authorization form, ensure applicant identifies all financial institutions
anticipated to require access. The purpose should also be stated broadly on
the form. In addition, form DOJ-461 captioned, "Certificate of Compliance
with the Right to Financial Privacy Act of 1978," must be executed by a
"supervisory official" and transmitted along with DOJ-462 to the financial
institution before financial records may be obtained. The certification of
compliance requirement is an absolute prerequisite to Government access to
financial records under RFPA. See MIOG, Part II, 23-6.
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(2) Check names of close (adult) relatives against files of local
law enforcement agencies at present place of residence. Do not conduct
credit, traffic violations or Motor Vehicle license checks on close relatives.
(3) If record is located, obtain in detail all necessary
identifying data which identifies applicant or applicant's relative with
person on whom record is located. As to applicant, verify if there is an
arrest record involving a criminal offense or a traffic offense other than a
parking violation. Ascertain not only disposition but check existing court
docket, blotter, or case file for any additional data that might be available.
Should it be necessary, interview arresting officer if available.
(4) Frequently arrests are made on charges which are generic and
indefinite in nature. Examples of such vague charges are disorderly conduct,
loitering, etc. In such instances, it is not sufficient merely to report that
applicant was arrested on such a charge, but exact nature of applicant's
activities resulting in arrest must be ascertained. Charge of disorderly
conduct might encompass activities ranging from sexual deviation to
distribution of communist literature. Exact nature of such charge must be
ascertained for inclusion in report.
(5) Some law enforcement agencies departmentalize their
operations making it necessary to check records of various squads and bureaus
within agency. Checks of records of each such individual squad or bureau
must be made. Check should include traffic violations for the applicant or
employee only.
(6) Checks should not be limited to police departments but must
include records of sheriff's offices and other duly constituted law
enforcement agencies.
17-6.11
Affiliation With Questionable Organizations
(1) [Determine whether applicant has been affiliated with
organizations or groups which involve the use of force or violence, which
advocate the overthrow of legally constituted forms of government by
unconstitutional means, or which deprive individuals of their civil rights
under the Constitution, laws or treaties of the United States. Ascertain
knowledge of or agreement with policies of such organizations as well as
dates of affiliation and extent of participation as member or officer.
Conduct inquiries to verify or disprove alleged affiliation and also provide
characterization of organization involved.
(2) Contact logical informants familiar with organization or
allegations involved.]
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17-6.12
Association with Questionable Individuals
(1) Ascertain degree of association and awareness on part of
person under investigation of activities of questionable individual.
(2) Extent of influence questionable individual exercises over
applicant.
(3) If questionable individual previously investigated under
Executive Order 9835, Executive Order 10450, or Executive Order 10422, report
should so state. Include title of position, agency where employed, and year
investigation conducted. Also report any pertinent data received subsequent
to above investigation.
(4) Search names of questionable associates through office
indices.
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17-6.13 Signed Statements
(1) Press to obtain from persons furnishing derogatory data
re applicant and disloyal data on references, relatives, or close
associates. Include in opening paragraph of signed statement desires
regarding testifying before hearing board and any request for concealment
of identity; e.g.,
"I,
,
furnish the following voluntary statement to
, who has identified himself to me as a Special Agent of the FBI,
United States Department of Justice. I am (not) willing to testify before
a hearing board in the presence of the employee and his counsel and be
cross-examined. (My unwillingness to testify is due to business commit-
ments. I request my identity not be disclosed.)"
Do not include reasons for unwillingness if such will disclose
identity and concealment of identity has been requested.
(2) Reason for refusal to furnish signed statement should
be set out in report. If person refuses to furnish signed statement, FD-302
should be used.
17-6.14 Availability for Testimony Before Hearing Board
(1) Persons furnishing derogatory data - Determine availability
to testify of persons furnishing dederogatory data.
(a) Strive to have individuals express willingness to
testify as interest of Government and employee's retention in employment
may be affected by testimony. Do not furnish advice.
(b) Inform testimony may have to be in presence of employee
and counsel and subject to cross-examination.
(c) Individual's desires regarding testifying should be set
out in report, including any conditions under which willing to testify.
Reasons for unwillingness to testify should be shown in report.
(d) Persons inquiring re time and place of hearing, reim-
bursement for expenses, etc., should be informed such matters should be
discussed with agency requesting their testimony.
(2) Informants - Bureau does not contemplate making established
active informants available for testimony before hearing boards.
(a) Report informant unavailable for testimony.
(b) If informant later becomes available and is willing
to testify, submit letter bearing informant caption, with copy for all
cases in which informant previously furnished information. Set forth brief
background data re informant. Comment specifically whether or not infor-
mant's identity may be revealed to outside agencies. Include in detail any
data which would indicate inadvisability for informant to testify. Set
out following re each case identified: Bureau file number; title and
character (John Doe, Treasury, SGE) ; T symbol used to conceal informant's
dentity in report; and page number containing information from informant.
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(3) Special Agents of FBI
(a) Will be made available for testimony if they possess
competent evidence of own knowledge
(b) Will not be made available merely to interpret infor-
mation in report
17-6.15
T Symbols
(1) Where individual is willing to have his name made known to
hearing board or agency but requests identity not be disclosed to person
under investigation, openly report individual's name, together with his
desires regarding use of his name. Where individual desires his identity
not be disclosed outside FBI, utilize T symbol.
(2) When interviewing an individual to solicit information con-
cerning someone other than the interviewee (thereby classifying that
individual as a source of information) the interviewing Agent must also
follow the procedure relating to promises of confidentiality as described
in MIOG, Part I, 190-7 (FOIPA).
(3) Information from confidential investigative techniques
(a) Care must be exercised to insure report does not leave
erroneous impression that informant involved is personally acquainted with
person mentioned.
(b) Report informant unavailable for recontact. No comment
necessary regarding furnishing signed statement or testifying.
17-6.16
Exhibits
(1) Submit if suitable for dissemination to support derogatory
information.
(a) Since exhibits may be made available to person investi-
gated during adjudication, do not submit if this will jeopardize security
operations of office.
(b) If not submitted, information contained on exhibit,
without mentioning exhibit's existence, should be reported. Cover page (s)
should show existence of exhibit and reasons not submitted.
(2) Submit one copy with each copy of report. If bulky, requir-
ing extensive reproduction, promptly advise FBIHQ on UACB basis indicating
two copies will be submitted.
(3) Submit copies of previous loyalty hearings afforded applicant.
(4) Writings of applicant
(a) Submit copies of any pertinent to security determination.
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(b) If writings not pertinent to investigation; list in
report, and state in cover page (s) writings not per-
tinent to security determination.
(5) Submit to FBI Laboratory pertinent exhibits containing
questioned handwriting.
(a) Secure handwriting specimens for comparison from sources
other than direct contact with person under investigation.
(b) Obtain at outset of investigation.
(c) Handwriting specimens should include, if possible,
specimens written during period of questioned material.
(d) Describe specimens objectively.
17-6.17
Tax Matters
Check for tax liens (state and local) when there is questionable
financial status concerning Presidential appointments, Federal judgeships,
USAs, U. S. Marshals, Deputy Attorney General, Assistant Attorneys General,
Department heads, members of U. S. Parole Commission and U. S. Courts
applicants. Furnish questionable financial standing to auxiliary offices
for appropriate checks. Where check of IRS records is necessary, interested
agency will provide appropriate waiver or FBIHQ will issue instructions to
appropriate office to obtain waiver from applicant.
17-6.18 Newspaper Morgues
Check newspaper morgues for pertinent information on Presidential
appointments, prominent people, individuals outstanding in their field of
endeavor, or any other person under investigation where indication check
would be productive. If some indication exists to make check undesirable,
SO state on cover page of report.
17-6.19
Information from Other Government Agencies
(1) Reinterview individuals who furnished derogatory information.
(a) Where interviewee on current interview furnishes same
information, not necessary to report he previously furnished this informa-
tion to other Government agency
(b) Where interviewee contradicts information attributed
to him by other Government agency; quote information
from other Government agency, report discrepancies in
information called to person's attention, and report
interviewee's explanation for discrepancies.
(2) Determine identify of original source for any pertinent
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information and interview. If agency unwilling or unable to identify its
source, indicate reason and agency's evaluation.
(3) When interviewing person previously interviewed by another
Government agency do not reveal interview based on previous investigation
unless absolutely necessary. Such revelation necessary where contradictory
information received, but identity of other Government agency should not be
made known.
17-6.20
Applicants Not to Be Interviewed
(1) Persons under investigation are not to be interviewed without
FBIHQ authority. If situation arises necessitating such interview, furnish
facts to FBIHQ for approval.
(2) Be guided by instructions regarding interviews of individuals
with subversive background.
(3) If person under investigation offers to furnish information,
inform him/her that information furnished will be made available to interested
department or agency. If possible, secure signed statement.
(4) Pertinent results of previous interviews should be reported.
(5) Exception - Person under investigation may be interviewed
without Bureau authority for purpose only of supplementing personal history
data. If done, include results of interview in report or other appropriate
communication to FBIHQ. The FBI conducts these interviews with the
understanding the referral agency notifies each person it solicits information
from of the Privacy Act requirements described in Part I, 190-5, subparagraphs
(2) and (3) of this manual.
17-6.21
Agency Checks
(1) Leads for various national agency checks are set out by FBIHQ
to appropriate offices (Washington Field in most instances). If nature of
applicant's past employment, military service, or foreign travel so requires,
[
applicant's name is searched against records of[Office of Personnel
[ Management, Central Intelligence Agency, armed forces intelligence agencies,
and any other appropriate agencies. If special circumstances so dictate, the
applicant's name can also be searched against records of the Passport Office,
U.S. Department of State.
(2) If applicant is known to have been previously processed for
clearance by Atomic Energy Commission, Department of Energy, or Nuclear
Regulatory Commission, security files of appropriate area office or offices of
Department of Energy or Nuclear Regulatory Commission which handled clearance
procedures should be checked.
17-6.22
Terminology
(1) Refrain from stating interviewee "unable to furnish any
derogatory information." Report specifically what interviewee furnishes.
(2) Refrain from using "pattern language" in reporting interviews
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such as language indicating all persons described employee as "100%
American.
17-6.23
Admissions, Denials, or Falsifications
(1) Report pertinent admissions, denials, or explanations of
membership in subversive organizations.
(2) Develop any misrepresentations, falsifications, or omissions
of material facts.
17-7
DEROGATORY INFORMATION
17-7.1
Necessity for Thoroughness
(1) Many agencies for which we conduct investigations have set
up hearing boards to consider derogatory information in FBI reports. These
reports may be used by agency to interview individual or they may furnish
statement of charges to applicant and afford him a hearing. Publicity
may result. It is most essential that investigations be thorough, complete,
and factual to avoid any basis for criticism of Bureau and its investigation.
(2) Ascertain facts on which are predicated any derogatory
conclusions on part of person interviewed. If it is impossible to obtain
information resolving a question of identification, report shall definitely
show this to prevent any person reading report from drawing conclusion
that question of identification has been resolved.
(3) Identify and interview original sources of derogatory infor-
mation. It is not sufficient to receive such information indirectly or
secondhand. If for some reason it is impossible to interview original
source, report should clearly show reason. Documents on which allegation
first recorded in office files must be carefully reviewed.
(4) Field offices discovering derogatory data must insure that
sufficient investigation is conducted to verify or disprove it. Advise
expeditiously other offices which should be cognizant of derogatory informa-
tion in order to conduct adequately their part of investigation. If agency
check discloses derogatory data and a question of identity is involved,
office checking agency is to report fully information obtained; initiate
necessary investigation to resolve question of identity; and set out leads
to interview original sources.
17-7.2
Handling Information Derived from File Searches
Data derived from file searches on applicant, relatives, refer-
ences, and associates should be utilized in connection with investigation
and as lead material. Pertinent information from files should also be
organized for inclusion in report.
(1) Information on applicant - Office discovering derogatory
information in its files on applicant should organize and report it unless
data are contained in case in which another office is origin which division
has received copy of FBIHQ communication initiating investigation. In
latter event, only office of origin in previous case should report data.
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(2) Information on reference or other person to be interviewed -
Office conducting interview has primary responsibility to report derogatory
information. If this office has incomplete information but another office,
such as office of origin, has complete information, office conducting inter-
view must insure that office having complete data reports it fully.
17-8
FRAUD VIOLATIONS
Possible fraud against the Government (FAG) violations are some-
times detected during applicant-type investigations. They result from
falsification or concealment in questionnaire or application executed
and submitted to Government by applicant in apparent belief that true
recitation of facts would prejudice opportunity for employment. For addi-
tional instructions, see section of this manual concerning Fraud Against
the Government.
17-8.1
Applicable Statutes
(1) Title 5, USC, 3333 and 7311
(2) Title 18, USC, 1001 and 1918
17-8.2
Violations Involving Security Aspect
(1) Examples: false denial of arrest or misrepresentation of
other material facts.
(2) These cases are to be presented to the USA: however, in
order that employing agency can first be apprised of fact case is to be
presented, advise FBIHQ by teletype of pertinent facts, including intent
to present USA. As soon as employing agency is notified by FBIHQ on
Headquarters level, field will be advised SO case can be presented USA as
early as feasible to avoid unnecessary investigation in event he would not
authorize prosecution.
(3) Cases involving petty or immaterial offenses, such as an
arrest for drunkenness or other minor misrepresentations, are brought to
FBIHQ's attention by cover page (s) accompanying investigative report, and
are not presented to USA.
(4) Investigate possible fraud violations simultaneously with
applicant-type investigation. Do not open separate case. When fraud
matter presented to USA, add "Fraud Against the Government" to character.
Set forth in report opinion of USA, and insure venue discussed.
(5) When applicant phase of investigation is completed, but
prosecutive action is awaited, submit pending report.
17-8.4
Discontinued Investigations
(1) If facts indicate possible violations of above statutes, add
"Fraud Against the Government" to character of applicant case following
receipt of prosecutive opinion.
(2) Submit reports including facts developed up to discontinuance
of investigation, pertinent information from office files, facts indicating
possible violation, and opinion of USA or Department.
1300
1/31/78
MIOG
PART I
SECTION 161. SPECIAL INQUIRIES FOR WHITE HOUSE, CONGRESSIONAL
COMMITTEES, AND OTHER GOVERNMENT AGENCIES
161-1
GENERAL INSTRUCTIONS
These instructions supplement those contained in Part II,
Section 17, of this manual.
161-2
"SPIN"
Code word "SPIN" in all communications in this category indicates
request for investigation emanates from office of the President or other top
governmental officials and therefore demands every possible priority. Code
word "SPIN" will be substituted for following specific instructions:
(1) Handle promptly and thoroughly. Assign experienced personnel
and sufficient personnel to assure completion by deadline date. Set out leads
by airtel, or teletype, directing all such correspondence to FBIHQ, as well as
to offices receiving leads. This correspondence must also include code word
"SPIN" to ensure that these instructions will be followed. [Complete name of
all close relatives and their current addresses are normally furnished to
FBIHQ by the official requesting the investigation. Should a field office
determine that the data furnished is incomplete, not current, or in error,
FBIHQ and interested field offices should be promptly advised by telephone or
teletype. ] Where appointee is an attorney, pertinent bar and grievance records
must be checked. Those cases involving possible Presidential appointees must
include a determination of individual's ability, as previously defined; and if
poor financial background is developed, special inquiry must be made to
determine whether any tax liens have been filed and results of any litigation
regarding bad debts must be obtained. Do not divulge position involved to
persons interviewed.
(2) Professional titles of persons interviewed must be complete;
i.e., Major General John J. Jones, United States Army, retired, should be set
out rather than merely General John J. Jones, United States Army.
161-3
EDUCATION
When no college attendance is indicated, high school records
should be checked. It will not be sufficient to merely check attendance at
business or commercial institutions without also checking high school
records.
161-4
MEDICAL
If background furnished or investigation indicates person under
investigation has been treated for physical or mental problem no checks with
doctor's or medical institutions should be made unless so instructed by FBIHQ.
161-5
INTERVIEWS
In the investigation of prospective Presidential appointees, a
sufficient number of interviews of knowledgeable individuals must be
conducted covering the individuals entire adult life to permit a valid
evaluation by the requesting agency. In most instances the principal
747
5/8/80
MIOG
PART I
SECTION 161. SPECIAL INQUIRIES FOR WHITE HOUSE, CONGRESSIONAL
COMMITTEES, AND OTHER GOVERNMENT AGENCIES
office, that is, the office which covers the individuals past five years
of residence and/or last employments would be expected to obtain the
bulk of these interviews.
161-6
PRIVACY ACT - REQUIREMENTS
When interviewing anyone in the above classification, in order
to solicit information about himself or his own activities, the inter-
viewing Agent must follow the procedures described in MIOG: Part I,
190-5, subparagraphs (2) and (3).
When interviewing an individual to solicit information concerning
someone other than the interviewee (thereby classifying that individual
as a source of information) the interviewing Agent must follow the procedure
relating to promises of confidentiality as described in MIOG: Part I,
190-7.
748
1/31/78
APPENDIX D
UNPROMULGATED GUIDELINES
APPENDIX D.
WHITE HOUSE PERSONNEL SECURITY AND
BACKGROUND INVESTICATIONS
I. COLLECTION OF INFORMATION
A. Initiation of Investigation
1. White House investigations involving file reviews
or field investigations conducted by the FBI
shall be initiated only to ascertain facts and
information relevant to the suitability of persons
being considered for Presidential appointment;
staff of the Executive Office: clearance for access
to classified information; granting clearance for
access to or service at the White House or other
places under the protection of the U.S. Secret
Service in connection with its duties to protect
the President and the Vice President of the
United States.
2. White House investigations involving file reviews
or field investigations shall be initiated as
follows:
a. The President of the United States. and the
Counsel or Associate Counsel to the President
or the Attorney General may initiate investi-
gations directly with the FBI.
b. The Secretary of State and the Director of
the National Security Counsel may request the
FBI to conduct White House investigations when
authorized by formal agreements with the
Attorney General. These agreements shall
designate by title all persons authorized to
request White House inquiries, shall be
consistent with the provisions of these
guidelines, and are to be published in the
Federal Register.
3. Requests for White House investigations involving
file reviews shall be made or confirmed in writing;
specify the official initiating the request;
identify the person under investigation for
appointment, clearance or service; and the purpose
of the investigation as described in A(1) above.
- 2 -
4. Requests for White House investigations involving
field investigations shall be made or confirmed
in writing; specify the official initiating the
investigation, and identify the person under
investigation for appointment, clearance, or
service. The request shall be accompanied by
a statement signed by the subject of the investi-
gation acknowledging that he has consented to
the investigation with the knowledge that facts
or information gathered shall be retained consistent
with the FBI records retention plan. The requesting
official must certify the subject of the investiga-
tion has been apprised of the provisions of Section
(e) 3 of the Privacy Act of 1974.
B. Investigation
1. White House investigations involving file reviews
or field investigations must be thorough, precise,
and fair.
2. Persons interviewed during White House field
investigations shall be told that the individual
under investigation is being considered for 2
position of trust involving the Government. The
name- of the official or agency initiating the
investigation, or the position for which the
individual is being considered shall not be
disclosed unless specifically authorized by the
requesting official.
3. Subject to the Freedom of Information Act and
Privacy Act of 1974. persons interviewed during
White House field investigations may be assured
that, to the extent permitted by law, information
identifying such persons will be kept confidential.
4. Where a person is the subject of a subsequent
White House field investigation, information
contained in the earlier report reflecting adversely
on the person shall be re-investigated, where such
inquiry is likely to yield information relevant to
the current investigation and where such inquiry
is practicable.
- 3 -
C.
Reporting
1. Information obtained during White House file
reviews or field investigations shall be
furnished to the initiating authority and/or
the White House. The FBI shall retain a record
of persons to whom such information is furnished.
2. Any investigative efforts to determine the truth
or falsity of reported derogatory allegations
or information shall be reported.
3. Where the identity of the source of information
is not reported in a White House file review or-
field investigation, an assessment shall be
provided of the reliability of such source.
II. DISSEMINATION AND RETENTION OF INFORMATION
A. Retrieval
1. The FBI shall retain a record of all relevant
information gathered during the course of White
House investigations consistent with these
guidelines.
2. Information obtained during these investigations
may be indexed in such a manner as to assist in
its subsequent retrieval.
B. Access
1. The Director of the FBI shall insure that access
to White House investigative files under his
control is restricted and that stringent controls
are maintained over such files limiting their use
to official purpose.
2. Officials outside the FBI to whom White House file
review and field investigations reports are furnished
shall insure that internal access thereto is
restricted to persons directly involved in making
Presidential appointments; determining Executive
Office staffing; granting clearance to classified
information; approving access to or service at the
White House or other place under the protection of
the U.S. Secret Service as described in these guide-
lines. A record shall be maintained of the identity
and organizational unit of officials requesting
access to White House investigative files. as well
as the dates these files are issued and returned.
- 4 -
C. Dissemination
1. Where during the couse of a White House field
investigation the FBI finds some indication that
the person under investigation may have committed
a crime or other violation of law the FBI shall
notify the initiating official thereof; and either
investigate the crime if within its jurisdiction
or refer the facts or information of the possible
violation to appropriate authorities for
determination.
2. No subsequent dissemination shall be made by the
FBI of the results of White House field investi-
gations or file reviews, conducted for the
incumbent Administration, without the express
approval of the President, Counsel, or Associate
Counsel to the President, except as expressly
required by federal statute or as part of an
investigation of a violation of law.
3. No one receiving FBI reports of White House file
reviews or field investigations shall reproduce
or disseminate these materials other than in
accord with B(2) above without the express consent
of the FBI. Such dissemination must be predicated
upon the request of an official authorized by or
in accordance with these guidelines to initiate
a White House investigation, and only for a purpose
authorized by these guidelines.
4. The FBI and officials receiving reports of White
House file reviews or field investigations shall
maintain a record of all dissemination of these
materials to other agencies.
D. Retention of Information
1. Information obtained during White House file
reviews or field investigations shall be retained
at FBI Headquarters and at FBI field offices as
prescribed by the FBI Records Retention Plan.
2. Results of White House investigations maintained
by the FBI shall be destroyed
years after
completion of the investigation subject to the
following conditions:
a. files and information determined by the
Archivist of the United States to be of
historic interest shall be transferred to
- 5 -
the custody of the National Archives and
Records Service
years after the
completion of the investigation.
b. files and information relating to persons
who have been re-investigated may be
retained
years from the date of the
latest investigation.
3. Anyone receiving FBI reports of White House file
reviews or field investigations shall destroy
such reports within ninety (90) days after
receiving them, unless notice in writing is given
to the FBI that an additional period of time, not
exceeding ninety (90) days, is needed to complete
a decision relating to the White House investigation.
4. The provisions of paragraphs two (2) and three (3)
above apply to all inquiries completed after the
promulgation of these guidelines. The provisions
of paragraph two (2) apply to inquiries completed
prior to promulgation of these guidelines when use
of these files serves to identify them as subject
to destruction or transfer to the National Archives
and Records Service.
5. When an individual's request pursuant to law for
access to files pertaining to him identifies files
as being subject to destruction or transfer under
paragraph two (2), he shall be furnished all
information to which he is entitled prior to
destruction or transfer.
NOTE: The primary reference of "pursuant to law"
in this paragraph is to the Privacy Act
of 1974, which specifically authorizes
access to background investigation files.
APPENDIX E
MEMORANDUM OF UNDERSTANDING
FEDERAL BUREAU OF INVESTIGATION BACKGROUND INVESTIGATIONS
FOR THE PRESIDENT-ELECT OF THE UNITED STATES OF AMERICA
The Federal Bureau of Investigation (FBI) will
conduct file reviews or background investigations (hereinafter
both referred to as investigations) at the request of the
President-elect or his designated representative of applicants,
employees or any persons engaged by contract or otherwise to
perform services for the President-elect. These investigations
shall only be conducted pursuant to the agreement between the
Attorney General and the President-elect to ascertain facts
and information relevant to the applicant's or the employee's
suitability for employment and/or trustworthiness for clearance
for access to information classified under the provisions of
Executive Order 11652 and where necessary for clearance for
access to compartmented information in accordance with the
standards set forth in Director of Central Intelligence
Directive 1/14.
Requests for investigations by the FBI shall be
made in writing from the President-elect or his designated
representative to the Director of the FBI enclosing a completed
Standard Form 86 (Security Investigation Data for Sensitive
Position) which provides the necessary background data and a
set of the individual's fingerprints for a check of FSI
Identification Records. To enable the FBI to comply with
Section (e) (3) of the Federal Privacy Act of 1974 and in
keeping with the spirit of this Act, the request shall be
accompanied by a statement signed by the subject of the
investigation acknowledging that he or she has consented to
the investigation with the knowledge that facts or information
gathered shall be retained consistent with the FBI Records
Retention Plan.
The President-elect or his designated representative
is to secure a written consent from the person under investigation
authorizing the FBI to conduct a file review and investigation;
granting it access to educational, credit and employment back-
ground records; and permitting its dissemination of all information,
whether newly developed or already contained in existing files,
to the President-elect or his designated representative, and to
appropriate Federal agencies where necessary to obtain clearance
to classified information. If a person furnishes medical
information bearing on suitability or trustworthiness, the
President-elect or his designated representative will secure a
MEMORANDUM OF UNDERSTANDING
PAGE 2
signed medical release from the person under investigation
and furnish such release at the time the investigation is
requested. If medical information bearing on the suitability
or trustworthiness of the applicant is developed through
investigation, the FBI will advise the President-elect or his
designated representative. President-elect or his designated
representative will advise whether further investigation is
desired and will either furnish to the FBI a release to review
necessary medical records and interview the physician or
advise if it desires the FBI to contact the persons under
investigation for the appropriate medical releases.
Subject to the Federal Privacy Act of 1974, persons
interviewed during these investigations may be assured that
to the extent permitted by law information identifying such
persons will be kept confidential.
The FBI will furnish summary memoranda and supporting
materials containing the results of its investigation to the
President-elect or his designated representative and retain
a record of the person to whom such information is furnished.
The President-elect or his designated representative will insure
that access to these summary memoranda and supporting materials
is restricted to persons directly involved in making a
determination as to the person's suitability for employment
by the President-elect and/or trustworthiness for access to
classified information. The President-elect or his designated
representative shall maintain records of the identities of
persons receiving access to the aforementioned materials and
such records shall be furnished to the FBI upon request. No
person having access to the aforementioned materials will
reproduce or disseminate such materials.
The President-elect or his designated representative
will insure that summary memoranda and supporting materials
and any copies received will be retained until January 20, 1981,
at which time they will become part of the Presidential papers.
The summary memoranda and supporting materials and any copies
received shall be returned to the FBI when a decision is made not
to employ an individual or whenever the individual terminates
employment or when required by law or presidential directive or
executive order or upon the termination of the President-elect's
administration.
MEMORANDUM OF UNDERSTANDING
PAGE 3
Under no circumstances should the President-elect
or the designated representative allow the person who is the
subject of an investigation direct access to the summary
memorandum and supporting material. If necessary to discuss
the contents of the summary memorandum and supporting material
with the applicant or employee the President-elect or his
designated representative will insure that the confidentiality
of the sources contained therein is protected. Any request
by the individual for access to the memorandum will be referred
to the FBI for processing in accordance with the Privacy Act
of 1974.
Information obtained during a background investigation
will be retained at FBI Headquarters and FBI field offices in
accordance with the FBI Records Retention Plan. Prior to
January 20, 1981, no subsequent dissemination shall be made by
the FBI of the results of the background investigation conducted
for the President-elect without the express approval of the
President-elect or his designated representative, except as
expressly required by Federal statute or a part of an
investigation of a violation of law.
The FBI will inform the President-elect or his
designated representative of any adverse information developed
during the FBI file review or during the background investigation.
The FBI will also provide the President-elect or his designated
representative with any adverse information and supporting
materials which subsequently come to the attention of the
FBI that question the suitability or trustworthiness of
any employee or any person engaged by contract or otherwise
to perform services for the President-elect. Information
obtained during background investigations conducted pursuant
to this agreement will not be disseminated outside the FBI
except when necessary to fulfill obligations imposed by law,
FBI regulation or presidential directive or executive order.
When a tentative decision is made to employ an
individual who requires an appropriate clearance for access
to classified information the President-elect or his designated
representative shall confer with the Director of the FBI or his
designated representative to ascertain the appropriate agency
or department which is authorized to grant the necessary
clearance to classified information and the President-elect
MEMORANDUM OF UNDERSTANDING
PAGE 4
or his designated representative shall furnish a copy of
the aforementioned summary memoranda and supporting materials
to the Director of Central Intelligence (DCI) or the appropriate
agency or department granting clearance to classified information.
The DCI or the appropriate agency or department involved
will insure that the summary memoranda and supporting materials
furnished to them pursuant to this agreement will be returned
to the President-elect within ninety (90) days of its receipt.
No person employed by the President-elect shall be
given access to any classified information or material until
appropriate procedures for granting clearance for access to
classified information have been established and clearance
granted. The President-elect will provide the FBI and the DCI
with a list of persons cleared for access to classified
information and the President-elect will advise the FBI and DCI
when an individual granted a clearance terminates employment
with the President-elect.
By BENJAMIN Attorney R Ciniletta R. General CIVILETTI
Ronald Ruge
RONALD REAGAN
President-elect
dated: 12/2/80
dated: 11/28/80
Edurn Merse II
EDWIN MEESE
Chief of President-elect's
Transition Staff
dated: I Dec 80
ADMINISTRATIVELY SENSITIVE - not to be released
MEMORANDUM
without authority of the Counsel to the President
THE WHITE HOUSE
WASHINGTON
July 7, 1983
FOR:
FRED F. FIELDING
RICHARD A. HAUSER
GAGL
FROM:
PETER J. RUSTHOVEN
SHERRIE M. COOKSEY
SMC
JOHN G. ROBERTS, JR.
DER
SUBJECT:
Final Draft of the SPIN
Report for the Attorney General
OVERVIEW
We have reviewed the final draft of the SPIN report to the
Attorney General and have the following comments:
As a general matter, we believe much of the report reflects an
effort by the FBI to preclude any allegations, past or future,
questioning its conduct of SPIN investigations. Moreover, we
consider the report to be insulting at times and unfair in
other instances in its characterizations of the knowledge and
awareness of the White House and Office of the Counsel to the
President in this and previous* Administrations with respect to
the conduct and sensitivity of SPIN investigations. Finally,
we disagree with the report's recommendations of obtaining a
Senate Resolution establishing a uniform procedure for the
confidential treatment of SPIN investigation reports, and
issuing an Executive Order formalizing all aspects of the SPIN
process. In our view, these would serve only to institutiona-
lize protections for the FBI and to frustrate Presidential
needs for flexibility in the SPIN process. In addition to
these general overview statements, set forth below are specific
comments on Sections IV and V of the report.
COMMENTS ON SECTION IV
On page 34, paragraph 5, the statement is made that members of
each President's transition team are unfamiliar with the
details of the appointments process and new to the Washington
environment. Implicit in this paragraph is the suggestion
that the members of the 1980 Presidential transition and of
previous transitions were ignorant of the traditional require-
ments of the Presidential appointments process. In our opinion,
these suggestions are inaccurate; as best we can establish,
each Republican President since Eisenhower has had experienced
Washington hands helping him with his transition. Accordingly,
we recommend that this paragraph be revised to eliminate the
suggestions that Presidential transitions lack appointments
process expertise.
ADMINISTRATIVELY SENSITIVE not to be released
without authority of the Counsel to the President
-2-
On page 35, the first full paragraph states that short SPIN
investigation deadlines are difficult for the FBI to meet and
contains the sentence: "When the transition team requests the
FBI to do in five days what generally takes 14, it must
recognize that it is getting a 'best efforts' investigation.
This sentence introduces a new term for the FBI, the "best
efforts" investigation. We disagree with the term, and object
to the concept the FBI is not responsible for providing to the
President a full and complete SPIN investigation on each of
his nominees; if the FBI cannot complete an investigation
in the time requested, it should so advise the White House and
should not provide the President an incomplete and potentially
inaccurate and misleading report subsequently characterized as
only a "best efforts" product.
The remaining paragraphs on page 35 introduce the concept that
the FBI and the transition team have different objectives for
SPIN investigations: the FBI's interest is to "conduct a high
quality SPIN investigation and provide the results in a clear
and complete and timely manner to the transition team"; the
transition team is described, however, as requiring the SPIN
investigation merely to ratify the President's decision to
nominate an individual: "the background investigation may be
treated [by the transition team] as a procedural hurdle to be
overcome without complications, particularly if they result in
delay and controversy." These paragraphs suggest that the
President's Counsel will not have the integrity to act upon
derogatory information provided by the FBI on a candidate
after a public announcement of that candidate's pending
appointment has been made. We find this suggestion both
inaccurate and offensive; accordingly, we recommend that the
provisions of these paragraphs describing "different insti-
tutional interests" of the FBI and the transition team in the
SPIN process be deleted.
The first full paragraph on page 36 suggests that it is a
difficult burden for the FBI to explain the SPIN process to
the transition team so that it can understand the scope and
depth of SPIN investigations. This is unnecessary and, in the
case of the last transition, incorrect. Also, the last sen-
tence in this paragraph states that the White House should
understand that it is its "perogative" to request the FBI "to
broaden" the SPIN investigation beyond its usual confines. We
believe that the FBI is attempting to shift the burden for the
investigative process and the integrity of the SPIN investiga-
tions to the transition team and the White House rather than
to acknowledge that the scope and quality of the SPIN investi-
gation is its responsibility. For these reasons, we believe
that the last sentence in the first full paragraph on page 36
should be deleted.
ADMINISTRATIVELY SENSITIVE - not to be released
without authority of the Counsel to the President
-3-
The next three paragraphs on page 36 recommend the creation of
an FBI briefing book describing the SPIN process and the
relationship between the transition team and the FBI. While
such a briefing book could be helpful to a transition team, we
have several concerns about it. First, we would want to
review the briefing book as it is prepared. As you can see by
this memorandum, the creation of a briefing book or even a
"report" by the FBI affords the Bureau the opportunity to
tailor the text of that writing to laud the FBI's efforts,
bemoan the difficulty of its tasks and, in general, to protect
the Bureau against assignment of any specific responsibilities
for the final product of its investigation. A more significant
concern about a briefing book, however, is the fact that it
could formalize the process for SPIN investigations to the
point where it would reduce any flexibility necessary to deal
with the unique problems of specific individual investiga-
tions. We question whether a briefing book would be similar
to negotiating a treaty with the FBI on SPIN investigations.
Will its existence preclude the President from asking for
additional information where he deems necessary? Suffice it
to say, that, as a result of our review of this report, we are
leary of any "briefing book" that would be prepared by the
FBI.
Another element introduced in these three paragraphs on page
36 is the concept of a "SPIN Czar". The FBI notes that there
should be one individual responsible for the coordination of
all SPIN reports and responses to any transition team requests.
We are unclear as to whether such an individual exists now and
if not, what such an individual would do.
The relationship between the White House and the Senate is
discussed on pages 37-38. Implicit in the opening discussions
of this relationship is the idea that the FBI has a co-equal
obligation to the Senate with respect to SPIN investigations.
We disagree with this concept and believe that the primary
responsibility of the FBI, as an agency of an Executive
Department, is to provide to the President full, complete and
accurate information in a SPIN investigation. Any information
that is subsequently provided to the Senate should be provided
by the President, and should not be viewed as fulfilling a
responsibility of the FBI to the Senate.
In the first paragraph on page 38, it is suggested that the
White House transition team leaked confidential information
developed in SPIN investigations to the Senate and to the
public. We are unaware of any such leaks by this Office and
believe that any suggestion to the contrary should be deleted
from this report.
Paragraph two on page 38 recommends that a single agreement
ADMINISTRATIVELY the SENSITIVE Counsel to BY not the to President be released
-4-
signed by the President and approved by the Senate should
govern the manner in which every Senate Committee receives,
reviews and protects information regarding the background of
Presidential nominees. Although there is some merit to this
idea, we believe it is naive as a practical matter. As you
know, there are separate agreements between the White House
and various Senate committees with respect to Senate review of
SPIN reports. For example, the Senate Judiciary Committee
receives the complete background report on judicial and other
nominees, and the staff of the Senate Judiciary Committee are
allowed to review these reports. This procedure is unique to
the Judiciary Committee and we are doubtful that we would want
to extend it to other Senate committees.
It seems obvious to us, though, that if one were to attempt to
negotiate a single agreement with the Senate, the most liberal
aspects of any individual agreements previously entered into
with separate Senate Committees, (e.g., permitting staff to
review the report and allowing review not simply of the
summary but of the entire background memorandum) would be the
end result of any approved Senate resolution. Accordingly, we
strongly recommend against the inclusion of this paragraph and
recommendation.
In the third paragraph on page 38, it is stated that the FBI
provides the Office of Counsel to the President with a summary
memorandum reporting the results of the SPIN investigation and
with the "full text of interviews containing derogatory infor-
mation. " To our knowledge, this statement is incorrect.
Although we have received the full text of interviews contain-
ing derogatory information on some nominees, it is not provided
to the White House as a matter of routine and is usually
provided only upon specific request by the White House. This
same paragraph goes on to note that the FBI plays no part in
providing the necessary SPIN information to the Senate. We
would point out, however, that the FBI acted directly contrary
to this statment in the Donovan situation, responding directly
to Senate inquiries on that SPIN investigation; indeed, that
was part of the problem in the Donovan background investi-
gation. Accordingly, we believe that paragraph 3 on page 38
must be revised.
On page 39, the SPIN report states that the FBI should not be
requested by the Senate committees considering confirmation of
a Presidential nominee to testify regarding the background
investigations of the nominee. While we agree that the FBI
should not, as a general matter, be required to testify before
the Senate on its findings in a SPIN investigation, we do not
agree that the FBI should be precluded from testifying before
Senate committees on specific SPIN investigations. There may
be times where it is appropriate for the FBI so to testify
before the Senate, either in open or closed session.
ADMINISTRATIVELY SENSITIVE - not to be released
without authority of the Counsel to the President
-5-
COMMENTS ON SECTION V
We disagree with the recommendation set forth at the top of
page 42 that an Executive Order and Attorney General guide-
lines should establish the procedures governing the initiation
of SPIN investigations and dissemination of the results of
such investigations. In our opinion, there should be no
formalization of the Memorandum of Understanding (MOU) exe-
cuted between the transition and the FBI other than to include
within the MOU a clause that such memorandum will continue
throughout the tenure of the President-elect's term in office.
Obviously, MOU's are much more flexible (and less public)
documents, whereas any change in an Executive Order to meet
the problems of a particular case could invite public and
media scrutiny and criticism.
The second recommendation on page 42 is not objectionable to
the extent that it recommends that short investigative deadlines
should be avoided wherever possible; however, we do disagree
with the paragraph in that recommendation that refers to "best
efforts" investigations. As stated previously, we do not
believe this "category" of investigations should be created
or recognized.
We do not disagree with the recommendation at the top of page
43 that, as a general rule, the name of a nominee should not
be formally announced, and confirmation hearings should not be
scheduled, until the White House Counsel's Office has an
opportunity to review the results of the background investiga-
tion. We recommend, however, that the fact that this is the
current practice in the White House be included in discussion
of this recommendation. Furthermore, the process has to
remain flexible to accomodate the occasional need of the
President to announce immediately his intention to nominate an
individual to fill a vacant position; thus, we recommend
against an inflexible rule on announcements of intentions to
nominate.
Recommendation number four on page 43 is one with which we
absolutely disagree. As we have discussed previously, we do
not believe that it is in the best interest of this Administra-
tion or any President to attempt to reach a formal agreement
with the Senate through which all SPIN material necessary for
the exercise of the Senate's advice and consent responsibili-
ties would be provided to it by the FBI. We believe that
providing any SPIN information to the Senate is wholly at the
perogative of the President and should be governed by past
practices and traditions as well as the facts of each parti-
cular nomination. We do not believe that a formal agreement
would in any way advance the President's interests.
ADMINISTRATIVELY SENSITIVE * not to be released
without authority of the Counsel to the President
-6-
With respect to recommendation five on page 44, we note merely
that we do not wish to foreclose the possibility that the FBI
may be called upon to testify for Senate confirmation commit-
tees.
Finally, with respect to the recommendation on page 44 for a
SPIN Czar, we cannot really comment until the proposal is
better explained.
CONCLUSIONS AND RECOMMENDATIONS
Based on the foregoing, we recommend you discuss this matter
privately with Ed Schmults at your earliest convenience, and
secure an agreement from Schmults that certain changes will be
made in this report prior to its finalization. Additionally,
we seriously question whether this report should be made
public at any time. Finally, we recommend that you advise
Schmults, if necessary, that we are prepared to disavow this
report if it is not changed and is released in its current
form, and that, if the Attorney General sends this report in
its current form to us, we will not adopt its recommendations.
SECTION IV
THE RELATIONSHIP BETWEEN THE WHITE HOUSE AND THE FBI,
AND THE WHITE HOUSE AND THE SENATE
At the core of a reexamination of the conduct of Special Inquiry
background investigations lies the need to better understand the relationships
between the White House and the FBI, and between the White House and the
U.S. Senate. The purpose of this chapter is to review both of these relation-
ships.
Relationship Between the White House and the FBI
With two major exceptions, the President has delegated to his Counsel's
Office the responsibility for reviewing FBI background reports and making
recommendations concerning the background and qualifications of potential
nominees. The exceptions involve nominations for ambassadorships, which
have been delegated to the Secretary of State, and for judgeships, U.S.
Attorneys and U.S. Marshals, which have been delegated to the Attorney General.
Yet, even with these exceptions, the final recommendations of each Department
are subject to de novo review, when appropriate, by the Counsel to the President.
The Attorney General, however, except in unusual circumstances, plays no
role in the SPIN process; rather, there is a direct relationship between the
White House Counsel and the FBI.
The FBI's objective in SPIN inquiries is to conduct a thorough investi-
gation of the background of prospective senior Executive Branch officials,
and to provide the results to the White House Counsel in a form that can be
easily but effectively reviewed. The investigation focuses principally upon
the character, associations, reputation, and loyalty of the nominees. In
essence, the report should identify any potential problem areas in the
candidate's background so that they may be considered as part of the total
evaluation of the individual's qualifications to hold high public office.
Notwithstanding the FBI's experience of more than three decades in
conducting background investigations on Presidential nominees, certain misunder-
standings concerning SPIN inquiries can occur between the White House and the
FBI. Inasmuch as Executive Branch routines and relationships with respect to
the SPIN process largely take shape during a Presidential transition and in
the first months of a Presidency, this period must be the focal point of any
effort to clarify or improve the process.
The members of each President-elect's Transition Team and the White
House staff of a newly inaugurated President are often new to the Washington
environment, and unfamiliar with the details of the appointments process.
They are faced with enormous pressures to process a large volume of applica-
tions, identify nominees, and put the new Administration in place as rapidly
as possible. Moreover, they are constrained to avoid or minimize premature
publicity about potential nominees.
The pressures of a Presidential transition are shared by those in the
FBI responsible for conducting SPIN inquiries. They must conduct hundreds of
background investigations on high-level nominees during the first year of the
34
new Administration. This is a tremendous burden, and the burden is made
even greater by the short deadlines often imposed. When the Transition Team
and White House officials settle on a nominee for an important or controversial
position, they usually want the background investigation completed promptly
so that the President can begin his term with his own team in place. When a
nomination must be confirmed by the Senate, a date for a Committee hearing
may be set even before the background investigation has begun. Sometimes,
short deadlines are set by the Transition Team and White House staff to
lessen the risk that news of the appointment will leak before it is announced
or that erroneous rumors will gain currency.
The imposition of short deadlines inevitably has an impact upon the
conduct of a background investigation. When the Transition Team imposes such
deadlines on the FBI, it must recognize that it is getting a "best efforts"
investigation. Perhaps most troubling, this effect may not be observable to
those unfamiliar with background investigations, because it may result from
subtle shortcuts rather than glaring omissions. For instance, interviews
that would generally be conducted in person may be handled by telephone,
where an individual may be less likely to be candid and open. Leads that
are not likely to be productive, but conceivably may open new avenues of
investigation, are less likely to be pursued.
The problem of short deadlines points to a more fundamental issue in
the SPIN process--the different institutional interests of the FBI and the
Transition Team. The FBI's interest is to conduct a high-quality SPIN
investigation and provide the results in a clear, complete, and timely manner
to the Transition Team. It is not interested in whether or not the report is
favorable to the nominee, as long as it is accurate and fair. The Transition
Team, of course, is deeply interested in the content of the report; it does
not want to nominate an individual who will embarrass the President or not
serve him with integrity. However, before an individual's name is provided
to the FBI for background investigation, his credentials and talents have
already been carefully examined by the Transition Team and found worthy of
consideration for an appointment. Once this decision is made, the background
investigation may be treated as a procedural hurdle to be overcome without
complications, particularly if they result in delay and controversy. Ideally,
the Transition Team should view the background investigation as an opportunity
for a more informed selection and not merely as a necessary formality in
the selection process.
This difference in institutional interests is most pronounced when a
background investigation is requested after public announcement of the
nominee's name. A Common Cause critique of the nomination process in the
Carter Administration addressed this phenomenon. It cited a Senate staff
member's criticism that, once a decision to nominate someone had been made by
the President, the Counsel's Office was placed in a defensive posture and
became an advocate for the nominee, a process that did not lead to meaningful
scrutiny Moreover, individuals may be more reluctant to provide the FBI
with information adverse to the nominee if the President has already formally
35
declared his selection. For these reasons, premature public announcement is
discouraged by the White House Counsel's Office, but it can sometimes not be
helped, such as when an official is removed and his replacement must be
immediately named or when false rumors of an appointment create a political
problem for the Administration.
Another major problem faced during transition is that the Transition
Team handling this onslaught of appointments generally has little or no
benefit of the experience gained by earlier White House staffs in reviewing
SPIN reports and making applicant determinations. As a result, each new
Transition Team and White House staff must be told anew about the scope and
depth of a SPIN investigation, so that they understand what it is--a series
of interviews and record checks--and what it is not--a certification that the
nominee is fit to hold office. They must be advised how to assess the
reliability and knowledge of confidential sources providing derogatory
information, and they must be informed that the FBI can seek to resolve their
questions either by providing them access to more detailed investigative
reports or by conducting additional investigation. Moreover, they should
understand their prerogative to request the FBI to broaden its SPIN investigation
beyond its usual confines to focus on certain areas of concern for a particular
nominee, such as potential conflicts of interest.
The FBI in the past has briefed relevant Transition Team members concerning
the SPIN process, but the briefings do not appear always to have achieved the
necessary degree of understanding. It would be helpful if the FBI prepared a
detailed briefing book describing the SPIN process and the relationship
between the Transition Team and the FBI. The oral briefing provided by the
Bureau could then correct misunderstandings, answer questions, and build the
personal rapport that will be essential during this critical time. The
Section Chief and Unit Chief in charge of SPINs must continue to be available
to the Transition Team on a daily basis.
There is an additional change that ought to be considered. At the
present time, senior officials of different offices within the Department of
Justice have separate responsibility for the review of individual categories
of DAPLI reports, that is, U.S. Attorneys, U.S. Marshals, and Federal judges.
No one official in the Department has an overall review role or central
coordinating responsibility. If one official were selected to provide a
central point of control within the Department for DAPLI reports, this could
aid the FBI in setting priorities. This experience and insight would also
be available to the White House Counsel's Office if it sought such advice.
The problems of short deadlines and misunderstandings grow less serious
after the early months of an Administration; by then, the pace of new
appointments slackens and the Counsel to the President becomes more accustomed
to the SPIN process. However, one problem that does not face the Transition
Team emerges once the new President takes office--the absence of a formal
document governing the authorization of a SPIN investigation, the steps taken
to protect the privacy of SPIN reports, and the safeguards provided for those
interviewed who requested confidentiality.
36
Each of these areas was covered during the transition periods of both
Presidents-elect Carter and Reagan by a Memorandum of Understanding signed by
the President-elect and the Attorney General. The Memorandum of Understanding
protects against background investigations being requested for improper
purposes by requiring the request to be in writing from the President-elect
or his designee, and to be accompanied by the written consent of the person
to be investigated. It protects against the unnecessary dissemination of
SPIN reports by restricting access to the material to the President-elect,
his designated representatives, and others directly involved in deciding the
individual's suitability for the position. To give teeth to the need-to-know
requirement, it prohibits copies to be made of the reports, mandates that
records be kept of who is given access, and requires the reports to be returned
to the FBI if a decision is made not to employ the candidate. Finally, the
Memorandum of Understanding recognizes the interest of those interviewed in
confidentiality and the importance of such confidentiality to the success of
a background investigation by promising to keep identifying information
confidential to the extent permitted by law.
However, the Memorandum of Understanding does not apply beyond the
transition, and efforts to replace it with an Executive Order have not been
pursued. Guidelines were formulated under Attorney General Levi, but they
were never enacted by Executive Order. Fortunately, the absence of an Executive
Order has not yet created significant problems, because both the White House
and the FBI informally follow the procedures embodied in the Memorandum of
Understanding. Yet, there remains a need for such a document to serve as a
safeguard against possible misuse and as a formal statement of the role and
responsibilities of each participant in the SPIN process.
Relationship Between the White House and the Senate
As described in Section I, the appointment of such high Government
officials as Cabinet Secretaries, Ambassadors, and Judges requires the
President to nominate and the Senate to confirm. To perform these separate
constitutional roles, the President and the Senate each need accurate and
candid information about the character and integrity of the nominee. It is
the FBI's task to investigate the background of the nominee and provide this
essential information.
The need of the President and the Senate for the results of the FBI's
investigation, however, must be balanced with two other important considerations--
the nominee's interest in not having his reputation damaged by unsubstantiated
allegations which may arise during the background investigation and the
interest of those interviewed in not having their identities revealed. These
latter interests are consistent with the larger institutional interests of
the White House and the Senate. Leaks of information that unfairly challenge
the integrity and reputation of nominees harm the innocent and discourage
individuals of ability from accepting positions in Government. Breaches of
promises of confidentiality injure those individuals who often were most
candid in discussing the nominee and make future background investigations
less effective by discouraging that candor in others.
37
Unfortunately, individuals in both the White House and the Senate may
sometimes lose sight of these larger interests in focusing upon transient
political or personal interests, and publicly reveal information that should
best remain private. The Transition Team, in its Memorandum of Understanding
with the Attorney General, has sought to limit this danger by imposing the
restrictions cited above.
The safeguards of limited access and accountability provided in the
Memorandum of Understanding should be adopted by the White House and the
Senate in a formal agreement governing the consideration of all advise-and-
consent nominations. These matters are too important to be left to informal
understandings or ad-hoc agreements with different Committee Chairmen.
Moreover, for many nominations, time is of the essence, and an agency should
not be left without leadership while the White House and the confirming Senate
Committee hammer out their differences concerning access to background material.
A single agreement, such as an Executive Order, a resolution of the Senate,
or a written understanding, signed by the President and approved by the
Senate, should govern the manner in which every Committee receives and protects
information regarding the background of an advise-and-consent nominee.
Currently, the FBI provides the Office of the Counsel to the President
with a summary memorandum reporting the results of the SPIN investigation and
with the full text of interviews containing derogatory information. Once
this information is provided to the White House Counsel, the FBI's role in
the nomination ends, unless, of course, additional information or investigation
is requested. The FBI plays no part in providing the necessary information
to the Senate; that task is handled by the White House Counsel. If the full
text of derogatory interviews is provided to the Senate, the FBI is provided
an opportunity to excise the text to protect the confidentiality of the
individuals interviewed.
It is essential to preserve the FBI's role as an impartial, nonpartisan
investigator providing background information to the President concerning a
political nominee for high office. First, it is only fair that the President
have the benefit of this information before it reaches the Senate. He enjoys
the constitutional prerogative to nominate, and he deserves the opportunity
to study the SPIN report and decide whether to pursue the nomination or
withdraw it. Only if he decides to pursue it need the information be provided
to the Senate. Second, the FBI should not be asked to provide SPIN information
directly to the Senate. The appointment of an advise-and-consent nominee
requires the interplay and ultimate agreement of the White House and the
Senate. If the Senate believes it needs additional information to carry out
its advise-and-consent function, it should request such information from the
White House. If the White House concurs, it can request the FBI to provide
it with additional information and pass on this information to the Senate.
If it demurs, it can negotiate a satisfactory arrangement with the Senate,
recognizing that the fate of the nomination may lie in the balance. The FBI
should not be drawn into this essentially political dispute. The FBI has no
stake in the appointment and placing it in this position will only endanger
the independence and objectivity upon which both the White House and the Senate
must necessarily rely.
38
Similarly, the FBI should not be requested by the Senate Committee
considering confirmation to testify regarding the background investigation
of the nominee. Such testimony almost inevitably places the FBI in the
uncomfortable and untenable position of being asked to characterize the
fitness of the nominee. The FBI investigates the background of a nominee;
it is neither its role nor does it have the special expertise to determine
his fitness for office. Such a determination must be left to White House
officials and the Senate on the basis of information provided by the FBI.
Moreover, it is extremely difficult for an FBI official during Senate testimony
to answer questions candidly and completely, and, at the same time, protect
the identity of confidential sources. This delicate task is best performed
in writing, where words can be chosen more carefully and agents involved in
the background investigation can examine the work product to ensure that the
identities of sources cannot be determined from the information provided.
Putting all information in writing also means that the White House can
effectively serve as the conduit for both the questions and the answers,
thereby giving the President the benefit of the information before it goes
to the Senate and protecting the FBI from being caught in the middle of a
political dispute.
39
FOOTNOTES
1/ Bruce Adams and Kathryn Kavanaugh-Baran, Common Cause, Promise
and Performance: Carter Builds a New Administration (Lexington,
Massachusetts; Toronto: Lexington Books, D.C. Heath and Company,
1979), p. 94.
40
SECTION V
SUMMARY AND RECOMMENDATIONS
Summary
The FBI and the White House have developed a workable arrangement for
investigating the backgrounds of Presidental nominees.
A request for a background investigation is made in writing by the Office
of the Counsel to the President, accompanied by appropriate waivers from the
prospective nominee. This request specifies whether or not the position is
subject to Senate confirmation. The scope of the basic SPIN investigation is
firmly established, but the White House has the opportunity to state more
precisely its requirements or priorities in particular cases.
The FBI imposes a usual deadline of 10 workdays on its field offices to
complete the SPIN investigation and attempts to provide the White House
Counsel's Office with the results of the investigation in 25 calendar days.
The results of SPIN inquiries are furnished in a summary memorandum
supplemented with the complete text of interviews containing derogatory
information. The names of those who requested that their identity not be
disclosed outside the FBI are not furnished to the White House. The White
House Counsel's Office may request the FBI to conduct additional investigation
if deemed necessary, or may ask to review the investigative reports, albeit
with appropriate safeguards to preserve the confidentiality of sources. The
FBI provides assistance to the White House in assessing the weight to be
given to information furnished by persons afforded confidentiality.
When the President decides to present the nomination to the Senate for
advice and consent, the White House Counsel provides the appropriate Senate
Committee with the relevant FBI background information necessary to make an
informed decision about confirmation.
These procedures are sensible and should be continued. However, some
shortcomings remain in the SPIN process which need to be addressed as
recommended below.
Recommendations
1.
Formalization of Procedures
There have been a number of attempts over the years to formalize SPIN
procedures, including the preparation of guidelines and the drafting of an
Executive Order, but none have been formally implemented. The only exceptions
have been pre-inaugural Memoranda of Understanding between the President-elect
and the Attorney General, which have no formal application beyond the transition
period.
41
The absence of an Executive Order or other formal agreement has not yet
created significant problems, because both the White House and the FBI
informally follow the procedures embodied in the Memorandum of Understanding.
Yet, there remains a need for such a document to serve as a safeguard against
possible misuse and as a formal statement of the role and responsibilities
of each participant in the SPIN process. Formalization of mutually agreed-upon
procedures, which could either be modified or adopted in whole by each incoming
Administration, would help in resolving misunderstandings which have arisen
over the use and interpretation of SPIN inquiries, as well as permit a degree
of flexibility over time.
Recommendation: Procedures governing the initiation of background investiga-
tions of White House nominees and dissemination of the results should be
established by Executive Order, or other formal agreement, and appropriate
Attorney General Guidelines.
2. Investigative Deadlines
The Transition Team and the staff of a newly inaugurated President
are faced with enormous pressures to process a large volume of applications,
identify nominees, and put the new Administration in place as rapidly as
possible. These pressures are shared by those in the FBI responsible for
conducting SPIN inquiries. Hundreds of background investigations on high-level
nominees are conducted during the first year of a new Administration. This
is a tremendous burden, one that is made even greater by the short deadlines
often imposed.
When the Transition Team and White House officials settle on a nominee
for an important or controversial position, they usually want the background
investigation completed promptly. When a nomination must be confirmed by
the Senate, a date for a Committee hearing may be set even before the background
investigation has begun. Sometimes, short deadlines are set by the Transition
Team and White House staff to lessen the risk that news of the appointment
will leak before it is announced or that erroneous rumors will gain currency.
The imposition of short deadlines inevitably has an impact upon the
conduct of a background investigation. When that happens, the Transition Team
must recognize that it is getting a "best efforts" investigation.
Recommendation: To the extent possible, the White House Counsel's Office
should avoid the imposition of short investigative deadlines and allow adequate
time for complete and comprehensive background investigations of all nominees.
3. Scheduling of Confirmation Hearings
The White House Counsel's Office comes under particular pressure
when a background investigation is requested after public announcement of the
intended nomination or when confirmation hearings on the nominee have been
scheduled prior to completion of the background investigation. Reviewing
officials in the White House may be forced prematurely into a defensive
posture or an advocacy position on behalf of the nominee. From the FBI's
perspective, an individual being interviewed may be more reluctant to provide
information potentially adverse to the nominee if the President has already
formally declared his selection.
42
Recommendation: As a general rule, the name of a nominee should not be
formally announced nor should confirmation hearings be scheduled until the
White House Counsel's Office has had an opportunity to review the results of
the background investigation.
4. Formal White House-Senate Agreement
The constitutional arrangement regarding Presidential appointments
clearly contemplates a spirit of accommodation and cooperation between the
Executive and Legislative Branches. Therefore, the policies governing the
President's submission of nominations to the Senate, and the scope of the
background information which is provided, must take into account the sharing
of power which governs the appointment process.
To perform their respective constitutional roles, the President and the
Senate must have accurate information about the character and integrity of a
nominee. These needs, however, must be balanced both with the nominee's
concern that his reputation not be damaged by unsubstantiated allegations and
with the sensitivity of those interviewed to not having their identities
revealed.
The safeguards of limited access and accountability are too important to
be left to informal understandings or ad hoc agreements with Committee
chairmen. An agreement, such as an Executive Order, a resolution of the Senate,
or a written understanding, signed by the President and approved by the Senate
should govern the manner in which every Committee receives and protects
information regarding the background of a Presidential nominee.
Recommendation: Each Administration should reach a formal agreement with the
Senate through which all SPIN material necessary for the fulfillment of the
"advise and consent" function would be provided under conditions which secure
the confidentiality of all sensitive information, sources, and methods.
5. Role of the FBI
The Donovan matter resulted in the unprecedented occurrence of
FBI officials testifying at the Senate confirmation hearing as to the conduct
and results of a background investigation. This case was also unique in two
other respects. It was the first time that the FBI has furnished such informa-
tion directly to the Senate, rather than by way of the White House, and it
was the first occurrence of Senate committee staff members being permitted
to interview an FBI source in a background investigation.
It is essential to preserve the FBI's role as an impartial, nonpartisan
investigator providing background information to the President concerning a
political nominee for high office. This is best accomplished when the FBI
provides information concerning a potential nominee to the White House Counsel's
Office, which would then forward this information to the appropriate Senate
Committee. The appointment of an advise-and-consent nominee requires the
interplay and ultimate agreement of the White House and the Senate. The FBI
should not be drawn into this essentially political dialogue. The FBI has
no stake in the appointment and placing it in this position will only endanger
the independence and objectivity upon which both the White House and the
Senate must necessarily rely.
43
Nor should the FBI be requested by the Senate Committee considering
confirmation to testify regarding the background investigation of the nominee.
Such testimony almost inevitably places the FBI in the uncomfortable and
untenable position of being asked to characterize the fitness of the nominee.
The FBI investigates the background of a nominee; it is not its role, nor
does it have the special expertise, to determine the nominee's fitness for
office. Such a determination must be left to White House officials and the
Senate on the basis of information provided by the FBI.
Recommendation: The FBI should be neither expected nor requested to provide
background information from SPIN investigations directly to the Senate.
The Senate should obtain the information it requires directly from the White
House in accordance with mutually satisfactory agreements.
44