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Learning from the Past: Lessons in Appointments Vetting

Lesson #6: The Vetting Team Must Be Up to the Task

November 8, 2016

Robert Rizzi, Partner and Dianna Mullis, Associate, Steptoe & Johnson, LLP

This post is part of a series on lessons learned from past presidential appointments. We’re grateful for the expertise of Robert Rizzi & Dianna Mullis of Steptoe & Johnson, LLP in developing this series.

Lesson #6: The vetting team must be up to the task

Douglas H. Ginsburg was nominated by President Reagan in October 1987 to fill a U.S. Supreme Court vacancy, but withdrew from consideration after disclosure that he smoked marijuana as a law school professor. One of the several lessons from the Ginsburg case was the intense criticism that was focused on the vetting team responsible for the nomination.

Much of criticism was leveled against attorneys at the Department of Justice, who were singled out by others in the Reagan administration and elsewhere for not “doing their homework.”

Those responsible for vetting nominees now know that if something arises later in the process that derails a nomination, they will be criticized for not having been more thorough and careful. This puts a premium on those assigned to this task, who are expected to assist on the nomination and also to adopt a quasi-adversarial posture with respect to the nominee in order to avoid later second-guessing.

Another example of a breakdown in the vetting process was the failed 2004 nomination by President George W. Bush of Bernard Kerik to be secretary of the Department of Homeland Security. Kerik was forced to withdraw from consideration just one week after his nomination was announced when it was disclosed he had not paid taxes for his family’s nanny and that she was undocumented and had been using a friend’s Social Security number.

The next day, allegations in the media linked Kerik to loans from organized crime figures and accused him of misusing an apartment in New York City for an extra-marital relationship. If that wasn’t bad enough, it became public that a New Jersey judge had issued an arrest warrant for Kerik in 1998 as part of a convoluted series of lawsuits relating to unpaid bills on a condominium.

These post-nomination revelations led to intense media scrutiny of the White House vetting team that approved the nomination. Kerik had previously served on then Mayor Rudy Giuliani’s security detail, as police commissioner for New York City and with the Iraq Provisional Authority. It was speculated that the White House attorneys assumed Kerik had been thoroughly vetted for his past positions.

One commentator noted “Bernard Kerik seemed straight out of central casting when he was nomination to take on the Department of Homeland Security. . . Instead of taking on terrorists, tough-guy Kerik was felled by the Mary Poppins tax.”

The failure of the vetting process in this instance had negative repercussions for all involved. In 2007, Kerik was indicted on federal charges including tax fraud and section 1001 violations in connection with shortcomings in financial disclosures as part of his background information statement for his nomination. He was sentenced to four years in federal prison. The White House ethics lawyer in charge of the nomination left her position a few months later, although the departure was not publically attributed to the Kerik nomination failure.

For further discussion of precedents, authorities and case studies in the vetting process, see the Presidential Appointments Vetting Guide prepared by the Partnership’s Center for Presidential Transition in collaboration with Allen & Overy and Steptoe & Johnson.

Learning from the Past: Lessons in Appointments Vetting

Lesson #6: The Vetting Team Must Be Up to the Task

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