The FBI investigation of Kavanaugh was doomed from the start

      Comments Off on The FBI investigation of Kavanaugh was doomed from the start
Supreme Court nominee Brett Kavanaugh testifies in front of the Senate Judiciary Committee.

The investigation was inherently limited, setting it up to disappoint.

The FBI’s investigation into Brett Kavanaugh was likely doomed to disappoint from the start.

Since the FBI completed its investigation, Republicans have been touting it as exonerating for Kavanaugh, who has been accused of sexual assault decades ago and denies all accusations. Sen. Chuck Grassley (R-IA), chair of the Judiciary Committee, put out an executive summary that listed the 10 witnesses the FBI interviewed and concluded that “there is no corroboration of the allegations made by Dr. [Christine Blasey] Ford or Ms. [Deborah] Ramirez.”

Meanwhile, two key swing votes, Sens. Jeff Flake (R-AZ) and Susan Collins (R-ME), said that the investigation was “thorough” — indicating that they believe its findings might provide enough information to decide whether to vote for Kavanaugh. And Flake has now said that he plans to vote for Kavanaugh.

But the FBI investigation wasn’t thorough. From the very beginning, the investigation of the sexual assault allegations was limited — in terms of time, which witnesses the bureau could talk to, and what other kinds of evidence the FBI could obtain. That was inherent here; the FBI investigation of Kavanaugh was not the typical criminal query associated with the FBI — which could be expansive — but a limited supplemental addition to background checks that the bureau has already done for the Supreme Court nominee.

Maybe that was the point. Perhaps the FBI investigation wasn’t meant to get to the bottom of the sexual assault allegations against Kavanaugh, but give certain senators cover to vote for Kavanaugh. Because the FBI certainly did not do the former, even as its investigation is raised up to do the latter.

The FBI’s Kavanaugh investigation was inherently constrained in many ways

Kavanaugh has now been accused of sexual misconduct and assault by several women, although he has denied all the allegations. Christine Blasey Ford said that, at a high school party in 1982, Kavanaugh groped her, tried to undress her, and covered her mouth to muffle her screams, while Kavanaugh’s friend, Mark Judge, stood by.

Deborah Ramirez said that Kavanaugh exposed himself to her and pushed his genitals in her face when they both were in college. Other allegations have surfaced but were not included in the scope of the FBI’s investigation because they were deemed not credible by the Senate, White House, and FBI.

In response to the allegations, Sen. Flake last Friday asked for a one-week delay on a full Senate vote for Kavanaugh to give the FBI time to conduct an investigation. Realizing that Kavanaugh’s nomination could collapse without Flake, Senate Republicans and the White House gave in.

From the start, though, the FBI investigation was limited in one way: It was not a criminal investigation (since sexual assault allegations are generally not in the realm of the FBI); it was, instead, a supplemental addition to a background check on behalf of the White House. The FBI does background checks for all sorts of federal nominees to see if they might pose a national security threat. But because this new supplemental addition was done for the White House, the White House got to set the parameters.

“The White House is in control of this. They might make decisions under pressure from the Senate, but they, ultimately, are in control of this,” Asha Rangappa, a former FBI agent, told Sean Illing at Vox. She added, “If the White House shuts it down, there’s nothing the FBI can do. This will be over, no matter what the investigators discover. Because this isn’t a typical criminal investigation, the FBI doesn’t have any independent authority here.”

A key difference is that these background checks are simply narrower than a typical criminal investigation, focused on evaluating a nominee’s character, conflicts of interest, and other related factors. They generally involve interviewing the nominee’s associates and looking through some publicly available documents and records, but not much more.

James Gagliano, a former special agent for the FBI and law enforcement analyst for CNN, told me that the criminal investigations are “more proactive.” He explained: “If there’s evidence there for a violation of a federal crime, we bring everything out.” That includes interviews and public record reviews, but it also involves everything from tracking social media platforms to physical surveillance to wiretaps.

One restriction imposed by the White House for the latest investigation into Kavanaugh: a one-week time limit. Gagliano said that time limits are typical for background checks into federal nominees, and he believes that the FBI would have asked for more time if it needed it. Instead, the FBI turned over a report days before the one week ran out.

But the White House and Senate Republicans, at least, were very clear that they didn’t want the investigation to go on for longer. Senate Majority Leader Mitch McConnell, for one, said repeatedly throughout the week, even before the FBI investigation concluded, that a vote on Kavanaugh would happen “this week.” That had to weigh on the FBI, making it clear that investigators were on the clock.

This is very unlike criminal cases. In those, the FBI can take as long as months or even years to conduct an investigation. That’s because every new piece of evidence, from a witness interview to a new document, can unearth a new lead. The FBI will then chase down these leads as long as it needs to — until it feels that all loose ends are tied up, so a case can win in court.

That wasn’t possible for Kavanaugh from the start, given that the FBI faced a time limit.

Initially, the White House also reportedly limited whom the FBI could talk to, restricting it to two of Kavanaugh’s high school friends, one of Ford’s high school friends, and Ramirez. It was only after the Senate’s Republican swing votes and Democrats raised a fuss that the White House allowed the FBI to talk to more people, but, again, only on the condition that the full investigation could still take no longer than a week.

Even then, the FBI didn’t talk to Ford or Kavanaugh, because, according to Bloomberg, it never got clear guidance from the White House that it could talk to them, while the White House indicated that the testimony Ford and Kavanaugh gave to the Senate should suffice for the FBI’s purposes. And there were more than a dozen other people whom Democrats wanted interviews for that the FBI never got to.

“Would I have wanted to interview Dr. Blasey Ford and Judge Kavanaugh after I had interviewed everyone else? Yes,” Gagliano said. But, he added, he doesn’t know why the FBI didn’t talk to them.

Since this wasn’t a criminal investigation, the FBI also couldn’t issue subpoenas. So if people declined interviews, agents couldn’t force them to talk. Indeed, one person whom the FBI approached declined an interview, according to Sen. Grassley’s executive summary.

And if the FBI wanted some records or other physical evidence, it would have to hope that whoever possessed the evidence turned it over on request. This was also relevant in the Kavanaugh case: Ford said that it would be helpful if she saw employment records for Kavanaugh’s friend, Mark Judge, because it would help her narrow down the date of the alleged sexual assault — a key fact in the allegations that remains in dispute. But the FBI wasn’t authorized, according to NBC News, to get these records, and it couldn’t have forced anyone to turn them over even if it was.

As the FBI wrapped up its investigation, there was another limit: It couldn’t provide a conclusion. For these kinds of background checks, the bureau presents the evidence it got from interviews and otherwise in a report to the White House and Senate, and the White House and Senate then reach their own conclusions about what the evidence says. The White House and Senate don’t even have to release the full findings to the public — and they haven’t so far in this case.

In short, the FBI was limited in its investigation every step of the way. There was the time limit. There were the limits on interviews. There were limits on subpoenas and physical evidence. The FBI couldn’t even reach a conclusion or release its findings to the public.

Under these circumstances, it’s not exactly surprising that the FBI didn’t uncover anything new.

It’s possible, though, that the limitations were the point.

Maybe the FBI’s Kavanaugh investigation was supposed to be limited

One way to understand the severe restrictions on the FBI investigation is that it was never supposed to get to the bottom of the allegations against Kavanaugh, but only provide cover for a vote for Kavanaugh.

Behind that is one key fact: Many people have already made up their minds on Kavanaugh.

Much of that is due to beliefs about Kavanaugh’s political and legal positions, which are to the right on issues ranging from abortion to environmental regulation. And part of it is because Kavanaugh is Trump’s nominee; in a highly polarized political environment and with Trump being the most controversial political figure in America, that alone is enough to get people to oppose Kavanaugh — and, in fact, many Senate Democrats came out against the nomination essentially the moment it was publicly announced by Trump’s White House.

But many people have also largely made up their minds on the sexual assault allegations. In the context of #MeToo, Democrats, who are more supportive of the movement, see it as the right thing to believe Kavanaugh’s accusers. Republicans, meanwhile, are much more likely to be skeptical of the #MeToo movement and all the sexual misconduct allegations that have come out of it, seeing the movement as part of a progressive effort to fundamentally alter America to change, among other things, gender norms. So the allegations against Kavanaugh have become part of a broader culture war. (That’s one reason why beliefs about the Kavanaugh allegations are largely split along party lines.)

Sen. Lindsey Graham (R-SC), one of Kavanaugh’s staunchest supporters, exposed the underlying culture issue last week when he explained his vociferous support for Kavanaugh by arguing, “I’m a single white male from South Carolina, and I’m told I should just shut up, but I will not shut up.” This explicitly invoked the racial and gender dynamics involved here.

As Zack Beauchamp explained for Vox, “No longer is this about Brett Kavanaugh and Christine Blasey Ford, or what he may have done to her in suburban Maryland in 1982. It’s about beating back the challenge from feminists and people of color demanding a seat at the table; it is about showing that white men in power are not going anywhere — that they will not listen, will not budge, and will not give ground to #MeToo or the Black Lives Matter movement.”

The FBI could have changed this by conducting a truly revelatory investigation. But it was never able to, due to the limits placed on it.

The FBI probe, however, was not for most people. It was for three people: Sens. Collins, Flake, and Lisa Murkowski (R-AK). It took calls by these three Republican senators, despite calls by Democrats and even a majority of the public, for Senate Republicans and the White House to agree to an FBI investigation.

The Senate is closely divided at 51-49 in Republicans’ favor. Assuming that no Democrats cross the aisle to vote for Kavanaugh, this allows Republicans to lose only one vote from their ranks (with Vice President Mike Pence breaking a tie in Republicans’ favor). If just two of the three Republican swing votes crossed over, Kavanaugh’s nomination would likely be done.

Republicans may have agreed to the investigation, knowing that it would be severely limited and could never uncover much, to get these swing votes on board. This way, Flake, Collins, and anyone else who joins them can argue they did their due diligence — giving them cover for a vote for Kavanaugh — without Kavanaugh ever being at real risk of some truly damning findings by the FBI.

Whether this gamble pays off remains to be seen.

But if it works, the FBI investigation was more a political exercise than anything else. That’s why the limits on the investigation, from its scope to how long it could take, may be allowed to stand, even if the limits stopped the FBI from uncovering new information. The query may have been mostly in service of getting the votes for Kavanaugh, not really for getting to the bottom of the allegations.