Kavanaugh’s Job Interview and the FBI Investigation

Here’s what you should know.

By Mike Zubrensky

When credible allegations of sexual assault against Brett Kavanaugh became public, many people with knowledge of the FBI background check process, myself included, urged the Trump administration to initiate a supplemental FBI investigation to look into those allegations. But the FBI investigation that was launched last Friday at the behest of Senators Flake and Coons risks being illegitimate. And reports that the FBI has failed to interview key witnesses and is on the verge of completing its investigation strongly suggest that it will be illegitimate.

First, the Trump White House appears to have placed limitations on the scope of the investigation. Over the weekend, NBC reported that the White House had severely restricted the scope of the FBI investigation and The Washington Post reported on Monday: “Coons said he expected a standard FBI investigation would allow agents to reach out to more witnesses that they learn about through the course of their initial interviews, but ‘I came away from our conversation [with White House Counsel Donald McGahn] with the impression that was not the case.’” Senator Coons reiterated his fear in an op-ed earlier today, stating “I remain very concerned that we might not get the prompt but thorough investigation that these serious allegations warrant and that the Senate and the American people deserve.” President Trump has denied establishing restrictions on the FBI investigation, but in light of his record of making false and misleading claims, the Senate cannot take him at his word. As another Republican president famously pronounced: trust but verify.

Although the FBI report itself is confidential and will not be made public, the White House directive to the FBI is not part of the FBI report and should be made public, along with any subsequent directions conveyed by the White House to the FBI, in light of the administration’s contradictory statements. Senator Dianne Feinstein — the ranking member of the Senate Judiciary Committee — has asked the White House for a copy of its written directive to the FBI regarding the scope of this investigation. To date, the White House has not provided that directive.

When I served as a Justice Department official and worked with the White House on the FBI background reports for over 300 judicial nominees, we never placed restrictions on who the FBI could contact in conducting an FBI background investigation. For a supplemental investigation, we would occasionally ask the FBI to talk to certain individuals who we believed had relevant information about the nominee, but we never put restrictions on the ability of the FBI to follow the evidence. If the Trump administration has placed such restrictions on the current Kavanaugh investigation, that would certainly undermine the FBI report’s legitimacy. There is no good reason to hide the directive given to the FBI.

Second, the FBI investigation is limited by its truncated timetable. As former FBI director James Comey wrote in a Sunday op-ed: “If truth were the only goal, there would be no clock.” Although the FBI has 35,000 employees, the vast majority do not work on background checks, and the artificial one-week deadline imposed as part of the Flake-Coons compromise may not constitute an adequate amount of time to thoroughly investigate the allegations of Christine Blasey Ford, Deborah Ramirez, and Julie Swetnick, as well as the numerous individuals who have publicly challenged Kavanaugh’s credibility, including his sworn testimony about drinking. Senate Judiciary Democrats have publicly called for the FBI to interview at least 24 relevant people. No one will have faith that this investigation was legitimate if they are not all interviewed.

For example, one of Kavanaugh’s college friends, Charles Ludington, said on Sunday:

“On many occasions I heard Brett slur his words and saw him staggering from alcohol consumption, not all of which was beer. When Brett got drunk, he was often belligerent and aggressive… I can unequivocally say that in denying the possibility that he ever blacked out from drinking, and in downplaying the degree and frequency of his drinking, Brett has not told the truth.”

In addition to key witnesses like Ludington, the FBI must also confirm whether Kavanaugh truthfully answered the many questions related to alcohol consumption on his past and current SF-86 — a lengthy form that some individuals seeking federal employment must fill out and which is part of the FBI background report.

Third, the FBI investigation should have been conducted before, not after, the Senate Judiciary Committee held a hearing with Kavanaugh and Dr. Blasey Ford, so the committee could have used it as the foundation for their questioning and for selecting additional witnesses. In 1991, in the wake of Anita Hill’s allegations, the FBI conducted a supplemental investigation and then the committee held a hearing with 22 witnesses. Republican claims that Dr. Blasey Ford’s allegation was a “he said, she said” case is a dynamic of their own making. In reality, it’s a “he said, they said” case, given the multiple allegations raised against Kavanaugh. If Chairman Grassley had truly attempted to conduct a search for the truth, he would have called additional witnesses such as Mark Judge, sexual assault experts, the individual who administered the polygraph test that Dr. Blasey Ford passed, and the many people who have come forward with relevant information about the credibility of Kavanaugh and Dr. Blasey Ford. Republicans cannot claim there was no corroboration of her claims when they themselves suppressed corroborative evidence from being heard. And the all-male Republican committee members’ unprecedented and cowardly decision to bring in an outside prosecutor to interrogate Dr. Blasey Ford only served to reinforce the one-sided nature of the hearing.

And finally, Majority Leader McConnell’s announcement yesterday that he intends to have a vote on Kavanaugh this week indicates he may not even wait until the FBI report is completed or reviewed before forcing a vote. This bad-faith maneuver should be troubling to all senators. No vote should be scheduled on Kavanaugh until the FBI report has been produced and until all 100 senators have had a chance to review it.

In my experience vetting hundreds of judicial nominees, there was never an instance in which more than a single hard copy of an FBI report was produced and made available to the Senate. The memorandum of understanding that governs the handling of FBI reports — which Grassley has just made public — precludes any photocopying of FBI reports and any creation of electronic copies, so senators are forced to share the one hard copy. Given the potential consequences of Kavanaugh’s FBI report, all 100 senators should want to review it carefully, and this will take time. They may want to discuss the report with Senate colleagues to help make credibility assessments. Because the FBI report is a confidential document that cannot be made public or discussed with anyone outside the Senate, senators will only have the ability to discuss its specific contents with each other and a handful of authorized staff, unless the witnesses themselves discuss their FBI interviews. McConnell’s decision to force a vote this week on the Kavanaugh nomination will likely deprive all senators of a meaningful opportunity to review and evaluate the FBI report, if it’s even finished by the time of the vote. This rushed process is beneath the world’s greatest deliberative body.

Senator Flake and his Senate colleagues who have not yet decided how to vote on the Kavanaugh nomination should insist that McConnell respect the confirmation process and hold off scheduling any votes until all 100 senators have a chance to review the supplemental FBI report. And they should demand that the FBI take the time it needs to conduct a real and meaningful investigation. Only if the FBI is permitted to conduct such an investigation can it adequately inform a senator’s decision whether Kavanaugh deserves a job promotion to our nation’s highest court. The investigation of Kavanaugh’s alleged sexual misconduct and lying to the Senate is far too serious for a rigged process.

Mike Zubrensky is chief counsel at The Leadership Conference on Civil and Human Rights. During the Obama administration, he served as a deputy assistant attorney general and worked on judicial nominations for the Department of Justice.