Security Clearances

Vetting and ethics requirements for transition staff and landing team members

Decisions about transition staff policies should be made early in the process and followed before and after the election. Will congressional staff be tapped to work between the election and inauguration? How will transition staff be vetted? Who will need security clearances? The Presidential Transition Enhancement Act of 2019 requires transition teams to develop and publicly disclose ethics requirements for their transition team members before the election. The law states that ethics plans must address several issues, including the roles of registered lobbyists and registered foreign agents on the transition team, conflicts of interest held by team members, and how the candidate will address their own conflicts of interest if they become president-elect. Each member of the transition team is also required to sign an ethics pledge.

In September of 2020, Biden released ethics rules requiring that those who were registered lobbyists or had registered as lobbyists with the previous 12 months to get approval from the general counsel to work on the transition team. The rules also barred transition team members from working on policy matters that might represent a financial conflict of interest and banned team members from, buying or selling stocks without the approval of the general counsel.

In 2016, the Trump transition team initially did not have a formal stance on lobbyists. Many lobbyists were slotted on agency action teams during the pre-election planning, but after Trump’s victory, those individuals were removed. This change in policy had a ripple effect that took many days to sort out. Eventually, the transition leadership instituted an ethics pledge that contained 13 rules. These rules prohibited transition personnel from engaging in matters in which they had a financial interest or on issues that they had lobbied on during the previous 12 months. The ethics agreement also barred individuals from lobbying for six months after the inauguration on any transition matter for which they had direct or substantial responsibility. The rules banned transition staff members from accepting or soliciting any money or item of value in exchange for a promise to support or use influence on behalf of any person in an appointed government position, and prohibited aiding foreign governments or foreign political parties during the transition.

The Obama 2008 transition prohibited registered lobbyists from working on the transition team or serving as a presidential appointee, which excluded many otherwise qualified and experienced individuals from serving in the new administration. Shortly after the election, the transition announced it would allow lobbyists to participate in the transition as long as they were not involved on issues related to their lobbying work. After taking office, the administration began granting a limited number of waivers to nominees needed for critical roles who would otherwise have been excluded from serving by the lobbyist ban. While the ethics pledge was an attempt to raise standards and avoid conflicts of interest, some Obama officials acknowledged that the rules at times handicapped the ability of the new administration to fully tap experienced personnel for key roles. Obama’s code of ethics was built on the the transition rules of George W. Bush in 2000 and others. The rules barred employees from using nonpublic information for private gain, disqualified them from transition work related to their financial interests and prohibited them from lobbying for six months on issues related to their transition activities.

Background Checks and Security Clearances

As a general rule, members of the transition team ordinarily undergo a basic background check using public sources. But transition leaders should consider initiating formal Federal Bureau of Investigation background checks and obtaining security clearances in the pre-election phase for those who will likely be in key White House and Cabinet positions. In addition, background checks and security clearances should be initiated for some likely landing team members. As a subset of agency review teams, landing team members will be sent in to meet with agencies to initiate agency review. Those landing teams working with intelligence and law enforcement agencies will need security clearances.

The ability to obtain security clearances prior to the election was made possible by the 2004 Intelligence Reform and Terrorism Prevention Act (P.L. 108-458). This clearance process ensures the president-elect will have the necessary staff support as quickly as possible on major issues of national security.

Typically, transition teams have 10 to 20 members who receive interim security clearances in the pre-election phase of transition planning. In the period between the election and Inauguration Day, the number of individuals who will have interim security clearances scales up dramatically. The 2008 transition was the first in which the 2004 statute was put to use when the Obama team submitted an estimated 150 to 200 names for clearance so that these individuals would have access to certain agencies and classified briefings after the election. The campaign of Republican Sen. John McCain, which had a significantly smaller transition operation, did not take advantage of the opportunity. In 2016, the Clinton transition team had four individuals cleared by Election Day, but had submitted the names of about 150 people who were in the process of being reviewed. In the pre-election period, the Trump transition submitted about 50 names to the FBI and a number of those individuals had been cleared. Some of those individuals were dropped from the team after new transition leadership took control following the election. The Trump team ultimately made the decision after the election to rely heavily on individuals who already had security clearances in order to save time and get transition representatives into the national security agencies quickly. In 2020, the Biden transition team had between 200 and 250 individuals cleared between the election and inauguration.  After inauguration, transition team members who joined the administration  have their clearances moved to permanent status.

Along with key transition leadership roles, individuals on agency review landing teams for agencies involved in national security or foreign policy related topics should expect to go through the security clearance process if they do not already hold a top secret security clearance. In addition, a member of the first lady or first family’s transition team should expect to need security clearances in order to make arrangements for the first family’s move in arrangements.