To do otherwise would be self-sabotage.
To do otherwise would be self-sabotage.
O n Saturday night, President-elect Trump announced that he is nominating Kash Patel — a former Trump administration official, top congressional staffer, and Justice Department national security lawyer — to lead the FBI. That is, the bureau’s current director, Christopher Wray, is to be fired before his presumptive ten-year term expires.
By the time this news broke, I had already put to bed for publication on Monday a fairly long essay on why the president-elect, for the good of himself and his agenda, should relent on his refusal to submit to FBI background investigations his transition officials and nominees for high-ranking posts.
In trying to make that case, I thought it was appropriate to address Trump’s fraught relationship with the FBI and with director Wray, whom Trump appointed in 2017. I am not as down on Wray as are Trump and many of his advisers, including Patel. I acknowledge that there are a number of good reasons why the president-elect might decide to fire Wray and start fresh with a new director. But I also thought there was a case to be made for keeping him, not least because it would spare Trump a tough confirmation hearing when he can only afford so many as he tries to get the new administration up and running.
Sometime soon, it might be worth elaborating on the Trump–FBI history and the pros and cons of Wray, in a separate post or two (I did, after all, spend time writing them!). Given the Patel nomination, however, they are now beside the point.
A Brief Word, for Now, on Kash Patel
I know Kash a bit, and I like him. I believe he and his House Intelligence Committee boss, Devin Nunes, were positively heroic in getting to the bottom of and exposing the Trump–Russia “collusion” farce. That alone, for me, creates a presumption in favor of the nomination. Rather than get distracted by the Patel caricatures on offer since Saturday night — whether from sky-is-falling Trump obsessives or currently triumphal MAGA warriors — I’d suggest that the best way to understand the man on his own terms is to read his book, Government Gangsters: The Deep State, the Truth, and the Battle for Our Democracy.
Having done that, I can report that I have some significant disagreements with him — most relevantly with his proposals for reforming the FBI, the Justice Department, and the Foreign Intelligence Surveillance Act (FISA). That’s not the end of the world. I’ve had big policy disagreements with many presidential appointees (Merrick Garland comes to mind), but I’ve still thought they should be confirmed. These are not lifetime judicial appointments; the elected president should get his preferred appointees to carry out his directives, provided the Senate finds them competent and trustworthy.
My strong impression is that Patel wants to reform departments, agencies, and institutions so that they cannot be weaponized politically by anyone in the future, not that he sees reform as a pretext for pursuing Trump’s nemeses (though he is gung ho for prosecuting them if crimes can be proved — which could be problematic and is something the Senate must press him about). But I’ll have more to say about the Patel nomination another day soon. For now, I want to stick with the main topic: FBI background checks.
The implication of the Patel nomination is that Trump believes the FBI is corrupt and needs thoroughgoing change. Nor need we rely on implication: Trump has said as much quite bluntly. We have to assume, then, that this conceit about bureau corruption informs Trump’s refusal to agree to FBI background investigations. But this is inconsistent with Patel’s premise, which is that the majority of the FBI is solid, does important work for the country, and must be reformed because its law-enforcement mission is essential. Patel’s beef is with FBI leadership and, relatedly, what he sees as the corrupting influence Washington has on the agency (which he’d address by moving almost all FBI personnel out of the D.C. area). FBI background investigations are routine matters, conducted by line agents, not bureau hierarchy.
Trump’s bypassing of the heretofore standard practice of bureau background investigations of his transition team members and cabinet picks would be yet another unforced error — similar to the futile, inevitably short-lived Matt Gaetz AG nomination and the related scheme to circumvent the constitutional requirement of Senate confirmation via lawless recess appointments. It would be self-destructive. It would stall the first year of his presidency, maybe more.
Notwithstanding the grandiose claims about the margin and historic import of his election victory, Trump faces formidable opposition. If he can’t hit the ground running with a functioning administration — if a lack of background checks prevents him from getting access to vital information now and confirmations of top-tier officials rapidly after New Year’s Day — he will squander the sparse running room that a term-limited, four-year president has to press his agenda effectively.
Why Refusing Background Checks Would Be Self-Sabotage
Trump’s long-standing, Russiagate-ignited distrust of the FBI has obviously been intensified by the bureau’s role in the search of his Mar-a-Lago estate and the criminal charges that followed — notwithstanding that, in my view, that prosecution was driven by the Biden-Harris Justice Department and Trump’s own bad behavior, not the more reluctant FBI. Irrespective of the ill will and the proper assignment of blame, it makes no sense for the president-elect to undermine the rollout of his new administration. That’s what will happen if he does not relent on FBI background checks.
There is no legal requirement that transition officials and nominees for high-ranking executive offices submit to FBI background investigations. But there are compelling practical reasons for the president-elect to direct that they do so.
First, the Biden administration will not be able to share classified information with Trump transition officials and nominees unless they are cleared to receive it. Trump will not be president until January 20 — a little over seven weeks from now. At that point, he will have authority to grant security clearances even if background checks have not been done (and even if they turn up disqualifying information); but not before.
In the all-important interim, the Biden administration, rightly, is not going to grant security clearances — even temporary ones — without a Trump agreement to submit to background investigations. The absence of such an agreement would markedly hamper the incumbent administration in informing its successors about many of the most important, pressing national security challenges they will have to deal with upon taking office. That is not a recipe for hitting the ground running, as Trump says he wants to do and as Americans expect him to do.
Moreover, it is unlikely that the Senate will confirm Trump nominees — including Kash Patel — if they have not undergone background checks. The chamber will have a six-seat Republican majority. Ergo, even factoring in soon-to-be vice president J. D. Vance’s tiebreaking vote, Trump can only afford to lose four GOP senators. After all, by rejecting FBI background checks for nominees, Trump would hand Senate Democrats and their legacy media pom-pom squad a cause to rally around, so it has to be assumed that Democrats would vote unanimously against most, if not all, such nominees.
There are also many Senate Republicans who correctly believe that such background checks are important (and would be up in arms if a Democratic president-elect were sloughing them off because he didn’t trust director Wray . . . or Patel). Already, at least three Republican Senators are on record regarding the need for background checks, and there will surely be more — probably many more.
About That ‘Mandate’
This brings us to two increasingly alarming problems: Trump and his supporters are both misreading the Constitution and exaggerating what they call their “mandate.”
Senators have a constitutional responsibility to check executive branch excesses and abuses of power, regardless of which party holds the White House. To be sure, Democratic senators are habitually derelict, and they degrade the Senate’s value as an institution when they slavishly back the lawlessness of Democratic presidents at the insistence of the party’s progressive base. By contrast, Republicans still project themselves as defenders of the constitutional order, and I still believe that many of them mean it. Hence, a number of them will take their duty seriously — even though they very much want Trump to succeed (as do I, by the way). The wiser among them also realize that it does the president no good to have appointees blown up once they are already in office by scandals that should have weeded them out during the confirmation process. Trump, for example, sustained no meaningful damage from the ill-fated Matt Gaetz nomination because it was nipped in the bud; the damage would have been far worse if Gaetz had blown up during confirmation hearings — or, worse, after becoming AG (however unlikely that was).
Now, about that “mandate.” It is to his great credit that the president-elect won not only an Electoral College majority but also the popular vote. Yet, he did not win a popular majority. When the counting is finally done, he’s probably going to end up with about 49.96 percent of the vote, and even if you round that up to 50 percent, it will still mean that slightly more Americans voted against Trump than for him.
No big deal — Trump will be 100 percent president and, unlike in 2016, his opposition is not even pretending that there are questions about his legitimacy. He won fair, square, and decisively. But not overwhelmingly. This is not FDR 1936, Nixon 1972, or Reagan 1984 — not even close.
The Democrats are far from vanquished: Vice President Kamala Harris won about 74.5 million votes (the third-most in U.S. history, trailing only Trump ’24 and Biden ’20) for an impressive 48.4 percent (i.e., over two percentage points more than Trump got when he won in 2016). Trump’s Electoral College margin of victory (312–226) ranks in the bottom fifth in American history, only slightly better than his 2016 margin (304–227). And even though, in overall votes cast, Republicans bested Democrats by a higher percentage (three points) than Trump’s margin over Harris (1.6 points), this may translate into the thinnest House majority in U.S. history (220–214) thanks to redistricting. The GOP House advantage is thinner still with Gaetz having resigned and Trump having drawn from it to fill key posts in the new administration (New York’s Elise Stefanik as ambassador to the U.N. and Florida’s Mike Waltz as national security adviser).
Now, to repeat my pre-election admission, I was wrong about the now-president-elect’s viability. I was convinced that he had an immovable ceiling of around 46 percent, maybe 47 on a good day, but that lawfare was going to mean bad days — that he’d be lucky to get to 44. He did much better . . . but not that much better. He’s entering office in a deeply divided country with about 50 percent opposition (his favorability rating, at about 45 percent, is high for him but still five points below his unfavorability rating).
I don’t mean to be Debbie Downer. My perception — for what little it may be worth — is that the country is weary of 21st-century divisiveness and failed administrations. The public would like to see a successful Trump presidency. Trump enters office more popular, and with better prospects for success, than in 2017. I am simply urging realism: Trump has neither the popular mandate nor the congressional margins that would be necessary for drastic changes. It’s all well and good to wax dreamily about DOGE, dismantling the administrative state, and cutting $2 trillion of spending, but when you wake up, you remember that overhaul of the kind Trump’s base yearns for would take major legislation that Democrats would oppose and court victories that will take time and are anything but certain. Trump could be an agent of meaningful change if he sticks to the things that got him elected (e.g., border security) and avoids self-destructive provocations. But he doesn’t have a lot of time.
What Kind of FBI Reform?
Take the FBI. Sure, there’s a lot a president can do to put his stamp on executive agencies. Yet, those agencies are creatures of statute. The FBI’s existence and functions were created by Congress, not the president; it’s going to take legislation to make significant, permanent structural changes.
And what changes? Trump campaigned as a victim of FBI abuse. Fine, but that is not a vision for FBI transformation. Does he want the bureau dismantled? Does he want it restructured? Does he want it to stick to crime-fighting and get out of the foreign counterintelligence business . . . in which case, what happens to that vital mission? He squawks about FISA, which was used against him in 2016–17, but he also supported reauthorizing it and hasn’t given any indication of how he’d reform or replace it.
That is to say, Trump didn’t run on any identifiable FBI reform ideas beyond putting people he trusts in charge of it. He doesn’t have a popular mandate to do anything specific to it. That simply wasn’t part of the campaign. If he wants an overhaul, he’d need to explain it and get enough Democratic buy-in to enact legislative changes in the FBI’s existing authorities. (In an upcoming post, I’ll address the specific FBI, DOJ, and FISA reform proposals posited by Patel; for now, suffice it to say they are not the strongest part of his book.)
Reform is a long-term project. Trump, however, is going to be a one-term president. The reality of that is going to sink in soon. Even at the start of his term, when he’s at his strongest, Democrats are not going to roll over for Trump. By mid 2026, we’ll be immersed in midterm politics with robust presidential-candidate fields in both parties already jockeying for 2028. The American president is always relevant, and Trump is a larger-than-life figure who won’t be ignored. But barring unforeseen events and crises, it is inevitable that his capacity to push big legislation and governmental transformation will be markedly diminished by 2027.
That’s just the way things work in a deeply divided country with a system of divided government, whose campaigns and elections roil from one cycle into the next in an intense national media environment. No one should know that better than Trump, whose political career seemed ignominiously kaput in January 2021. But it is simply a fact: No one actor in our constitutional system has the power, on his own, to make enduring change — except, perhaps, by disastrous moves that spawn change for the worse.
Don’t Fight over FBI Background Investigations
So . . . here’s the question: How does President Trump want to spend the two years (or less) that he may have to be effective? Fighting with the Senate over FBI background investigations? I sure hope not.
As noted above, and as the president-elect surely knows, FBI leadership doesn’t perform background checks. They’re done by line agents. Those would be the men and women who do the FBI’s everyday investigative work that the country needs done. It is work for which Trump — who has vowed to reverse rampant crime in major cities — will soon be claiming credit. President Trump will need that FBI. So will AG Pam Bondi if she is going to be successful. And it would positively harm Patel if, before taking over as director, he has taken the position that the agents he will be leading cannot be trusted to do routine, fair, and competent law-enforcement work.
It makes no sense to prevent line agents from doing background checks.
Those investigations can make it possible for Trump’s new administration to gain access to the information it needs to be ready to govern on Day One. They can make it easier for the Senate to confirm most of Trump’s nominees — as for any who don’t get confirmed, that’s likely going to be because of well-known grounds for suspicion rather than anything the FBI unearths. (See, e.g., the New York Times profile on Robert F. Kennedy Jr., Trump’s nominee for HHS secretary.) And remember, nothing that emerges out of a bureau background check can prevent Trump, once he is president, from granting security clearances to whomever he wants — as long as he is willing to take any resulting political heat.
For his own good, President-elect Trump should let the FBI get moving with background checks. His political capital, in a limited window of opportunity, should be reserved for fights worth fighting. This isn’t one of them.