America First Legal Uncovers Apparent Legal Violations by FBI and Congressional Staff Concerning Nominee Background Investigations

WASHINGTON, D.C. – Today, based on newly obtained documents from an investigation into the U.S. Department of Justice (DOJ), America First Legal (AFL) released a report for the U.S. House of Representatives and U.S. Senate concerning explosive new discoveries about the Federal Bureau of Investigation’s (FBI) flawed and unlawful background investigation (BI) process for nominees to positions that require Senate confirmation.  

AFL previously released evidence that candidates for presidential appointments are subject to repeated violations of the Privacy Act and the Paperwork Reduction Act, among other laws, during the FBI background investigation process. 

Today’s investigative report reveals that Senate Judiciary Committee staff appear to have shared FBI background reports and personal financial information in breach of Senate security protocols. Worse, the Department of Justice appears to have shared encrypted information electronically, breaching privacy protections subject to its agreement with the White House.

The improper handling of BI investigation materials is of critical importance because BIs can be weaponized against future nominees of any administration. The current practice violates the Memorandum of Understanding (“MOU”) between the White House and the Senate Judiciary Committee, the MOU between the White House and DOJ, as well as plain federal law prohibiting the breach of executive branch orders through the disclosure of sensitive information.

Discoveries from AFL’s investigation include the following highlights: 

• Senate Judiciary Committee staff appear to have disclosed sensitive information outside the security process mandated in the MOU. For example, staff used non-secure Senate email systems to share FBI and financial information of nominees;
• Two Senate staff members appear to have electronically disclosed to executive branch officials FBI background reports, which constitute the confidential business of the Senate Committee on the Judiciary, in violation of the MOU;
• Background investigation reports appear to have been removed from the custody of the Security Manager by non-designated Staff Members and sent electronically, in violation of the MOU’s security provisions, to executive branch officials;
• Senate Judiciary Committee staff appear to have failed to heed the command that “Designated Staff Members will maintain strict control of FBI background reports in their custody.”

The documents AFL obtained reveal that DOJ officials — who are not signatories to any agreement with the Senate Judiciary Committee — appear to have repeatedly shared BI and personal financial information with Senate Judiciary Committee staffers:

At the same time as Senate majority staff were sending protected BI information to the executive branch, executive branch officials from the Justice Department disclosed BI information via email to Senate majority staff, thus appearing to violate the security protocols of the MOU (see e.g., the last redacted sentence below referring to an “FBI interview”): 

Justice Department officials also disclosed confidential financial information of nominees to Senate staff:

Documents reveal that a DOJ official submitted encrypted “additional serials” regarding two nominees’ BIs:

According to these new disturbing revelations from AFL’s investigation, AFL has sent a letter to the Chairman of the House Judiciary Committee Jim Jordan, Chairman of the House Committee on Oversight and Accountability James Comer, Chairman of the Senate Judiciary Committee Dick Durbin, and Chairman of the Senate Homeland Security and Government Affairs Committee Gary Peters demanding action by their respective Congressional committees to reform this flawed process immediately.

AFL is committed to fighting this unacceptable abuse of the BI process, which has been and will be weaponized against nominees in any future administration, including the Trump Administration.

Statement from Dan Epstein, America First Legal Vice President: 

“Candidates for nomination deserve a process designed to ensure only accurate, relevant, timely, and complete information is contained in the background investigation file. AFL’s first letter to the House and Senate Judiciary members showed how the FBI’s process failed in those guarantees. Now, we show that privacy protections — and binding agreements signed by the Senate — are routinely defied. If the government ignores privacy and security when it comes to high-level political officials, all Americans should question how the government treats their most private information,” said Dan Epstein.

Read the report here and below: