June 22, 2020

Navigating the screening process for high-level political appointees

The vetting process for individuals seeking a political appointment can be long and difficult. And the more senior the position, the more scrutiny appointees receive. Powerhouse attorneys Leslie Kiernan and Robert Rizzi have helped political appointees navigate the vetting process, and share their expertise with host David Marchick. They describe the appointment process, what might disqualify an individual and how the rules change with each administration. 

[tunein id=”t148232873″]

Read the highlights:

Marchick: “What are the most common issues that arise during the vetting process?” 

Rizzi: “There are often tax issues that trip up nominees, classically nanny taxes. Those and other kinds of unpaid taxes are a constant problem. Taxes are complicated. People make mistakes. They find those mistakes during the vetting and that creates some significant issues.  

One of the other problems that we deal with constantly is financial conflicts of interest. There is a criminal statute that prohibits financial conflicts of interest. Many of the investment products that exist today did not even exist when the statute was enacted. And so how those standards applied to these kinds of investment products is very, very complicated, and those are often significant impediments to nominees. The best thing that people can do…is to try to anticipate some of those problems in advance. Because once you get into the vetting pipeline, it becomes much more difficult.” 

Marchick: “Laws around marijuana are changing state by state. How does this apply now when working for the federal government?” 

Rizzi: “Drug use is tested under the national security questionnaire, which has detailed questions concerning different kinds of drugs…It’s interesting because when we have clients who are relatively young, they’re sort of aghast that these are the issues that they’re being questioned about.  

The national security questionnaire focuses on federal law, not state laws. So even if marijuana use is legal in a state, that doesn’t mean it’s not a problem for the national security questionnaire… 

What has changed to some degree is the lookback rule. In the Bush 40 administration, there was a general understanding that if marijuana had been used more than seven years earlier, it could be disregarded. The Obama administration shortened that look back rule. There is a view that there is some period of forgiveness and that it is something that can be overcome. 

Kiernan: “It depends upon the position. I think that issues in that space also vary differently depending upon the committee [that is hearing the appointees’ confirmation]. So, it is something that, as Bob said, has evolved to some extent over time, but I don’t think that there is a single rule that governs this particular issue.” 

In reflecting on her experience vetting appointees and helping people through the process, Kiernan said: 

“I think it is incredibly important for candidates to be forthcoming in the vetting process. The worst place for a candidate to be is in a hearing where something comes up, and the candidate is being attacked for it. And either the White House or supportive senators are caught off guard. The idea that… nobody will find out is a very poor approach.” 

In discussing the recent restrictions on corporate lobbyists, Marchick pointed out that since the Clinton administration, the view on lobbyists coming in and out of government has changed. 

Rizzi: “Lobbyists had been a special target for a lot of the vetting issues that have come along. We haven’t really talked yet about the so-called ethics pledges that every administration since the Clinton administration has had, but those have special constraints on lobbyists going into government and…  after they get out of government. I was just talking to somebody today about a lobbyist for what everybody would regard as a public interest organization who was banned from going into the government because of these restrictions.   

Marchick: “Let’s say you were an advocate for the homeless… or some other disadvantaged group and you were doing the Lord’s work. If you happen to be registered a lobbyist, you were just ineligible under the former administration’s rules?” 

Rizzi: “Yes. We used to sort of kid that… all of the people who had been lobbyists for Friends of the Earth couldn’t work for the EPA. That was true in some cases. That was a judgment that was made, and I totally understand why given some of the things that we’ve seen.  

Marchick: You have said government ethics has become weaponized. What do you mean by that? 

Rizzi: “When I speak about weaponized ethics, what I mean is that the government ethics system, which is basically a set of filters to decide who should go into the government and who should not… has morphed into a system of using the process to try to achieve policy goals…The idea is that if we can block certain individuals from going into the government, we can affect policy. So one of the ways of blocking people is by emphasizing violations of some of these rules. And obviously that’s quite destructive and it deters people from going into the government.” 

Marchick: “What suggestions do you have to make the vetting process as smooth as possible should Vice President Biden win?”  

Rizzi: During the transition, the biggest problem is the clock is running. There’s a limited amount of time to get everything done…I think they need to be much more ruthless about making decisions quickly. We call it getting fast to know, and that is something I think they’re going to really have to have to think about.