Daniel Epstein (Florida International University College of Law) has posted Reclaiming Presidential Control of Nominee Background Investigations on SSRN. Here is the abstract:
For decades, presidential administrations have outsourced background investigations of nominees and appointees to the Federal Bureau of Investigation and have shared the resulting investigative files with Senate committees as part of the confirmation process. No statute compels either practice, and significant constitutional and statutory considerations cut against both. This Essay contends that these practices have drifted away from the core principle that background investigation files for presidential appointments are properly characterized as records solicited and received by the President in aid of his Article II nomination power. Any alternative position would expose the process as rife with statutory and administrative violations by the executive branch and procedural violations by the Senate. The President retains substantial discretion to redesign the process, and I offer a solution that preserves both presidential prerogative and the Senate’s advice and consent role.
And from the introduction:
The Report survives in the files of the Reagan White House Counsel’s Office, where it was reviewed by an Associate Counsel to the President named John G. Roberts, Jr. Roberts’s copy is annotated. At the passage stating that a President who proceeds with a nomination must furnish the complete BI report to the Senate, the future Chief Justice wrote in the margin: “No – It Doesn’t Have to Be Given to The Senate at All.” The marginal note is a striking remark. It records that the position advanced in this Essay — that the BI file belongs to the President, is generated to inform a decision the Constitution assigns to him alone, and reaches the Senate only as a matter of grace and negotiated accommodation — was the considered view of a lawyer (and future Chief Justice of the Supreme Court) in the Office of White House Counsel at the very moment the modern disclosure practice was hardening into custom.
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