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Senate Majority Leader Mitch McConnell advocated for thorough vetting of President Barack Obama’s cabinet nominees, but he seems to have a different standard for President-elect Donald Trump’s, suggested New Jersey Democratic Sen. Cory Booker on CBS’ Face the Nation.
The Republican-controlled Senate will hold several confirmation hearings for the week of Jan. 10, frustrating Democrats like Booker who say the jam-packed schedule was a move to deflect public attention from Trump’s more controversial nominees.
But back "in 2009, Mitch McConnell was the person that’s saying, ‘Hey, we should have all the ethics information in before we do the hearings.’ I just was reviewing his letter this morning," Booker said Jan. 8, emphasizing that rigorous review is perhaps more important for Trump’s nominees given their wealth, international business ties and potential conflicts of interest.
Is Booker right that McConnell advocated for complete ethical review for Obama’s appointees before holding confirmation hearings?
Booker’s claim is accurate, though it may be a bit premature to charge McConnell with hypocrisy.
The confirmation process
All cabinet-level positions as well as scores of senior-level personnel for executive branch agencies must be confirmed by the Senate. (Those who don’t have to be confirmed are positions that solely advise the president.)
First, the president or president-elect selects, vets and submits nominations to the appropriate Senate committees. Then the committees typically hold investigations (using information provided by the White House and their own research) and hearings (for public debate over the nomination). Finally, after review, they report the nominations to the full Senate for a vote on the floor.
According to the Congressional Research Service, the clearance stage includes submitting financial disclosure forms, completing background checks and signing ethics agreements that identify and outline ways to mitigate conflicts of interest, reviewed and certified by the Office of Government Ethic. This typically occurs before the nominations are submitted to the Senate.
The rules for confirmation vary by committee. All review a nominee’s biographical resume and some set of disclosure forms. Some also consult FBI background checks. Again, this information gathering often happens before a hearing, but is more often required before a vote.
In a letter released by Senate Democrats, the director of the independent Office of Government Ethics, Walter Shaub, expressed concern that several of Trump’s nominees with scheduled hearings have yet to complete the ethics review process as of Jan. 6, 2017.
"I am not aware of any occasion in the four decades since OGE was established when the Senate held a confirmation hearing before the nominee had completed the ethics review," Shaub wrote. "In fact, OGE has not received even the initial draft financial disclosure reports for some of the nominees scheduled for hearings."
Out of the Trump picks with confirmation hearings scheduled, ethics forms have been submitted for attorney general nominee Sen. Jeff Sessions, secretary of state nominee Rex Tillerson, defense secretary nominee James Mattis and transportation secretary nominee Elaine Chao, according to the Associated Press.
It’s unclear if forms have been submitted for CIA director nominee Rep. Mike Pompeo, homeland security secretary nominee Gen. John Kelly, and housing secretary nominee Ben Carson.
Forms have not been submitted for education secretary nominee Betsy DeVos or commerce secretary Wilbur Ross.
Experts agreed with Booker’s characterization of McConnell’s letter, sent to then-Senate Majority Leader Harry Reid dated Feb. 12, 2009.
"Prior to considering any time agreements on the floor on any nominee," McConnell wrote, ranking members expect eight ethical standards to be met.
Among them: a completed FBI background check, a completed Office of Government Ethics letter, completed financial disclosure statements (and tax returns where they apply) and a completed committee questionnaires submitted to the respective Senate committees "prior to a hearing being noticed."
In layman’s terms, McConnell not only required for "completion of disclosures but also review prior to floor consideration," said Wayne Steger, a political science professor at DePaul University and the author of A Citizen’s Guide to Presidential Nominations.
"The ethics review process had to be complete before he would agree to set aside the right to filibuster nominations," said Steven Smith, a political science professor at Washington University in St. Louis and expert on Senate procedure.
Booker’s office also referred us to a 2009 Roll Call article on McConnell’s letter.
"Senate Minority Leader Mitch McConnell (R-Ky.) on Thursday threatened to filibuster any of President Barack Obama’s executive branch nominations if they do not meet what he deemed a series of ‘standards’ for installment," the article reads (full version here).
McConnell’s office, meanwhile, argued that Booker mischaracterized the letter. McConnell’s communications director David Popp pointed out that by the time McConnell sent letter on Feb. 12, the Senate had already held hearings for everyone Obama nominated. This is accurate, and all but one of the 13 nominees was confirmed before Feb. 12.
"If you read the letter, it simply calls for continuing the best practices and precedents of the Senate — it does not ask for new preconditions the way Sen. Booker and other Democrats are now doing, such as calling for the tax returns of all nominees, rather than only in those committees that regularly request returns," he said.
Appearing right before Booker on Face the Nation, McConnell dismissed concerns from Democrats as sour grapes disguised as "little procedural complaints" and emphasized the need to get Trump’s national security team up and running on day one. He suggested his ethical standards hadn’t changed and said there is still time to comply.
After all, "we are still in the process of getting the papers in. I think at least five of the nominees have all of their papers in," he said. "The real thing is the vote on the floor, and we want to have all of the records in, all of the papers completed before they are actually confirmed on the Senate floor."
Booker said, "In 2009, Mitch McConnell was the person that’s saying, 'Hey, we should have all the ethics information in before we do the hearings.' "
McConnell wrote a letter on Feb. 12, 2009 that advocated for completion of disclosure forms before hearings and as a condition of floor consideration. But most of the the people Obama nominated by the time of McConnell's letter had already been approved.
We rate Booker’s claim Mostly True.
CBS, Face the Nation Transcript, Jan. 8, 2017
Politico, Mitch McConnell letter to Harry Reid, Feb. 12, 2008
U.S. Government of Government Ethics, Letter to Chuck Schumer and Elizabeth Warren, Jan. 6, 2017
Congressional Research Service, "Senate Consideration of Presidential Nominations: Committee and Floor Procedure ," March 9, 2015
Congressional Research Service, "Appointment and Confirmation of Executive Branch Leadership: An Overview," June 22, 2015
Email interview with Jeff Giertz, communications director for Corey Booker, Jan. 8, 2017
Email interview with David Popp, communications director for Mitch McConnell, Jan. 8, 2017
Email interview with Wayne Steger, political science professor at DePaul University, Jan. 8, 2017
Email interview with Steven Smith, political science professor at Washington University in St. Louis, Jan. 8, 2017
Email interview with John Wonderlich, president of the Sunlight Foundation, Jan. 8, 2017
Email interview with Kathleen Clark, law professor at Washington University in St. Louis, Jan. 8, 2017
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