Navigating the Nomination Process for Political Appointees

This is the latest in a series of columns from attorneys at O’Melveny & Myers LLP, examining the intersections of the political and legal worlds in the run-up to Election Day 2012.

Presidential elections trigger a wave of personnel changes, as the new or incumbent chief executive scrambles to fill critical posts while avoiding embarrassment and scandal. To expose potential problems, prospective appointees submit to rigorous review, allowing government agencies and the public to appraise their past and present relationships, investments, and activities. Once in office, they commit to ongoing scrutiny and make substantial sacrifices to comply with complex ethical rules. Missteps at any stage can lead to legal jeopardy and, often worse, reputational damage that takes years to repair.

Despite these burdens, nearly all political appointees relish the opportunity to serve, and many will recall their time in office as a pinnacle of an already distinguished career. Understanding the nomination and compliance processes—and enlisting counsel—can smooth the path to public office and free appointees to focus on and to enjoy their well-earned chances to serve.

Both federal pre-office vetting and post-confirmation compliance systems stem from an ever-changing hodgepodge of statutory rules and administration- or agency-specific policies. This year, for example, the Stop Trading on Congressional Knowledge Act (STOCK Act) expanded executive disclosure and enlarged public access to previously protected personal financial information, while another law passed in August 2012 slashed the number of positions requiring confirmation by the U.S. Senate. With these constant shifts, even veterans of prior administrations are often blindsided by the complexity of the vetting process. But despite continuous change, potential nominees can expect a standard suite of steps on the path to public office:

1. Nearly all prospective senior appointees must complete a national security questionnaire delving deeply into financial history, mental health, substance abuse, criminal charges, foreign travel, and every residence and job they have had for at least 15 years. The online form [PDF]—filed under penalty of perjury—challenges appointees’ memories and contains several traps for the unwary; completing it without legal guidance is highly risky. Each administration may also overlay its own background questionnaire, sometimes requesting such personal information as the nominees’ Internet handles and any potentially embarrassing emails, instant messages, or text messages they have sent. While the particular questions may vary with the President-Elect come November, potential nominees will likely encounter some variation on these personal probes.