Judicial Nominee Background Investigations — Fact vs. Fiction
We’re clarifying the FBI background process and addressing the misinformation being spread by Judge Kavanaugh’s defenders.
By Mike Zubrensky
For nearly seven years, from August 2010 to January 2017, I served as Deputy Assistant Attorney General in the Justice Department’s Office of Legal Policy (OLP). I supervised the vetting of over 300 judicial nominees and worked closely with the FBI as they conducted background investigations and supplemental investigations of these individuals.
Based on my experience, the FBI should be asked to conduct a supplemental investigation into the allegations of sexual assault against Brett Kavanaugh by Christine Blasey Ford. This post seeks to clarify the FBI background process and address the misinformation being spread by Judge Kavanaugh’s defenders.
Fiction
The FBI shouldn’t investigate Judge Kavanaugh based on Dr. Blasey Ford’s allegations because the FBI doesn’t conduct criminal investigations into nominees.
Fact
No one is calling for a federal criminal investigation of Dr. Blasey Ford’s allegations. The FBI’s career professionals conduct standard background investigations for every judicial nominee, and when new information comes to light, the FBI can re-open a background investigation and conduct additional witness interviews. That occurred several times during my tenure at OLP.
And as many have noted, the FBI re-opened its background investigation in 1991 when Anita Hill came forward with allegations of sexual harassment against Clarence Thomas. At the time, Senator Hatch stated:
“When they heard about this the first time, they immediately ordered the FBI investigation, which was the very right thing to do. It was the appropriate thing to do. They did what every other chairman and ranking member have done in the past. And the investigation was done and it was a good investigation.”
Similarly, it would be appropriate for the FBI to investigate Dr. Blasey Ford’s allegations.
Fiction
It is only appropriate for the FBI to investigate allegations that are made confidentially, like Anita Hill’s, because, according to Senator Grassley, the “purpose of the background investigation process is to compile information in a confidential manner” and “Dr. Ford has already made her allegations public.”
Fact
That analysis is flawed. The purpose of a background investigation is for the FBI to ascertain facts and information relevant to the potential nominee’s suitability and trustworthiness for government employment. The memoranda of understanding that govern FBI background investigations do not require that such investigations only address confidential allegations. Although Dr. Blasey Ford’s allegations are now public, there may be witnesses who would speak to the FBI who have not spoken publicly. Some people may be more willing to be candid with the FBI than they would be in other contexts, because they are under oath.
Fiction
An FBI investigation into Dr. Blasey Ford’s allegations wouldn’t be helpful because the FBI doesn’t make judgments about the credibility of the people they interview.
Fact
The FBI doesn’t make credibility determinations, but they have career professionals with the training and investigative experience necessary to ask the right questions and solicit relevant information. Special training is particularly important when interviewing sexual assault survivors and those who may have knowledge about the allegations. Once the FBI completes its investigation, senators can make informed credibility determinations and base their own inquiries on information they received from the FBI.
Fiction
If there are questions or allegations regarding a nominee, it is the role of Senate staff — not the FBI — to follow up and conduct interviews with relevant witnesses.
Fact
In my experience, staff-led investigations only took place when Senate Judiciary Committee staff had questions about minor issues — such as a past drug use discrepancy. Such matters could be resolved with a phone call between the nominee and committee counsels, and these calls always took place on a bipartisan basis with counsels for both the chair and ranking member. For more substantial issues, or where significant new information about the nominee came to light, committee staff would notify OLP as to the additional information it sought, and OLP would ask the FBI to return to the field and conduct additional witness interviews, sometimes including a new interview of the nominee.
Fiction
It is too late in the confirmation process for the FBI to conduct a follow-up investigation here.
Fact
If confirmed, Judge Kavanaugh would serve on the Supreme Court for decades. There is no need to rush the Senate’s consideration, and there is no deadline for when follow-up investigations may occur. I do not consider a nominee’s background investigation to be closed until a nominee is confirmed or withdrawn.
Fiction
The FBI doesn’t need to investigate Dr. Blasey Ford’s allegations because the FBI has conducted multiple investigations of Judge Kavanaugh over the years, and they have never uncovered allegations of sexual misconduct.
Fact
There is no statute of limitations for investigating allegations. Dr. Blasey Ford has reluctantly come forward at this time, and these new allegations must be investigated, even if they weren’t part of Judge Kavanaugh’s previous background reports.
Forging ahead with a hearing next week without allowing the FBI an opportunity to conduct additional interviews and collect evidence would be yet another abuse of power by the Republican majority during the Kavanaugh confirmation process. The Senate must honor survivors of sexual assault by taking their allegations seriously, respectfully, and on a nonpartisan basis. An FBI investigation is an important step in that direction. As Senator Hatch noted in 1991 when the FBI conducted an investigation into Anita Hill’s allegations: “When they heard about this the first time, they immediately ordered the FBI investigation, which was the very right thing to do.” It is the right thing to do today as well.
Mike Zubrensky is chief counsel at The Leadership Conference on Civil and Human Rights. During the Obama administration, he was Deputy Assistant Attorney General and worked on judicial nominations for the Department of Justice.
