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The fight over reopening the FBI investigation into Brett Kavanaugh, explained

The FBI reviewed Anita Hill’s allegations in 1991. It hasn’t committed to investigating Christine Blasey Ford’s.

Senate Holds Confirmation Hearing For Brett Kavanaugh To Be Supreme Court Justice
Supreme Court nominee Judge Brett Kavanaugh prepares to testify before the Senate Judiciary Committee on the third day of his Supreme Court confirmation hearing on September 6, 2018.
Chip Somodevilla/Getty Images

Christine Blasey Ford, who accused Supreme Court nominee Brett Kavanaugh of having sexually assaulted her in high school, says she wants the FBI to independently investigate her claim before she testifies in front of the Senate. Kavanaugh denies Ford’s allegations.

Democratic lawmakers have been calling for an independent FBI investigation from the beginning. Senate Republicans, however, say that’s not possible because “It’s not the FBI’s role to investigate a matter such as this,” as Senate Judiciary Committee Chair Chuck Grassley (R-IA) wrote in a letter to Ford’s lawyers on Wednesday.

Grassley argued that the FBI’s role in the confirmation process is merely to conduct a background check of the nominee, which the Senate then takes into account when determining whether or not to confirm the individual in question.

“The job of assessing and investigating a nominee’s qualifications in order to decide whether to consent to the nomination is ours, and ours alone,” Grassley wrote.

The Department of Justice, which oversees the FBI, also released a statement Wednesday noting that “[t]he allegation does not involve any potential federal crime.”

But Senate Democrats aren’t asking for a criminal investigation. They want the FBI to reopen Kavanaugh’s background check.

Grassley has shut that avenue down too, though. On Tuesday, Grassley told conservative radio host Hugh Hewitt in no uncertain terms that the “FBI investigation of Judge Kavanaugh is closed” and that the “FBI is not doing any further investigation.”

Grassley’s correct — the FBI’s background investigation is closed. But there’s nothing to stop the FBI from reopening or adding to it.

In fact, in 1991, the agency did just that, at the request of then-President George H.W. Bush, when Anita Hill made sexual harassment allegations against then-Supreme Court nominee Clarence Thomas. The FBI investigated and wrote a report that eventually led the White House to declare that Hill’s allegations were unfounded.

Back then, Sen. Orrin Hatch (R-UT) — who was and still is a member of the Senate Judiciary Committee — called it “the very right thing to do.”

That’s in stark contrast to the tweet his office posted on Tuesday claiming that the “FBI does not do investigations like this” and that the “responsibility falls to us.”

So what’s different with the Kavanaugh case? Nothing. Except that Republicans are adamant about getting their nominee through the process quickly — and Donald Trump doesn’t look like he’s about to ask for an FBI investigation anytime soon.

The FBI background check, briefly explained

Undergoing an FBI background check is standard operating procedure for a number of federal positions, including nominees for the Supreme Court. It’s a review that’s meant to probe a nominee’s qualifications as well as possible security risks the person could pose to the United States.

Potential vulnerability to blackmail is one such security risk. If someone has big secrets they don’t want revealed to the public — like, say, having committed sexual assault 30 years ago — a foreign country or other bad actor could learn that information and use it as blackmail. Some experts say that background checks tend to focus on more recent developments, however.

Harvard Law Professor Laurence Tribe highlighted the possibility of blackmail in Kavanaugh’s case as all the more reason why the FBI should conduct a full review of the sexual assault allegations against him.

As PBS NewsHour has explained, these background checks are extremely invasive probes of everything from a nominee’s romantic history to their credit score:

Candidates’ taxes, writings, childhoods, business dealings, medical histories and, yes, love lives, are all scrutinized for potential red flags. “The idea that you miss something that later torpedoed the nomination — that’s a nightmare,” said Jack Quinn, former White House counsel to President Bill Clinton.

Among the questions [Anthony] Kennedy was asked: Have you ever engaged in kinky sex? Did you shoplift as a kid? What about any associations with groups like the Klu Klux Klan [sic]? Ever abuse a girlfriend? Engage in cruelty to animals? And tell us about sex in college: How often, how many women, and did you ever contract a venereal disease?

Failed background checks have led to the downfall of many White House staffers, as well as federal nominees like Zoe Baird, whom President Bill Clinton nominated for attorney general. An FBI background check on Baird found that she was employing undocumented workers and it ultimately scuttled her nomination.

More recently, Trump’s (now former) White House staff secretary Rob Porter was also flagged during a review by the FBI, after the agency interviewed past partners who detailed allegations of domestic abuse. The White House, at the time, pleaded ignorance and said it had not received the completed results of the check.

During the administrations of Ronald Reagan and George H.W. Bush, background checks for many federal nominees were completed prior to their announcement, according to the New York Times.

Since then, however, as administrations have sought to expedite the nomination process, these checks tend to happen later on in the process. Kavanaugh’s background check was completed before his September confirmation hearing, according to Judiciary Committee spokesperson Taylor Foy. Foy added that most Supreme Court nominee checks are usually finished before a confirmation hearing takes place.

As Republicans are quick to point out, Kavanaugh has already undergone six background checks for various roles he’s held.

But none of the past background checks on Kavanaugh appeared to include an investigation into Ford’s allegation of sexual assault. Sen. Dianne Feinstein (D-CA) only submitted Ford’s letter detailing her experience with Kavanaugh to the FBI on September 12, after his background check was closed.

There is precedent to add a background check to address new sexual assault allegations

The FBI confirmed last week that it added Ford’s letter detailing the allegations to an existing background file on Kavanaugh. But the inclusion of this letter simply means that officials at the White House and senators are now able to access it and evaluate it as part of their consideration of the nominee. It doesn’t mean the FBI is conducting an investigation.

On Wednesday, the DOJ released an additional statement saying that it was not the agency’s responsibility to weigh the “credibility” of allegations like the ones Ford has made, and that the “FBI’s role in such matters is to provide information for the use of the decision makers.”

But that seems to contradict actions the FBI has taken in the past in response to such allegations. The agency does not make a definitive call about how certain allegations should factor into the review of a nominee, but it has played a fact-finding role before.

In 1991, the George H.W. Bush administration directed the FBI to gather facts after Anita Hill brought sexual harassment allegations against Clarence Thomas. In Hill’s case, the timeline was slightly different.

As a former colleague of Thomas’s, she was approached by the Senate Judiciary Committee to provide background information on Thomas before his confirmation hearings had begun. She didn’t bring up the harassment allegations until his hearing had already started, according to a timeline compiled by CNN.

Hill spoke to the panel about her experience with harassment a few days after Thomas’s hearings were underway, the New York Times reported. A few weeks later, an FBI the committee suggested performing an investigation into the allegations to Hill, she says. The White House said that it found out about her allegations around that time and directed the FBI to investigate them and add them to Thomas’s background check.

The agency then compiled a report about the allegations that included interviews with Hill, Thomas, and at least one witness, and submitted it to the White House. The investigation, which took place after the confirmation hearing, but before the committee vote, took three days. Based on the findings in the report, the Bush administration concluded that Hill’s allegations were “unfounded.”

A little over a week after the committee vote, NPR’s Nina Totenberg dropped a bombshell report exposing the confidential investigation to the public. That report spurred another public hearing specifically focused on the sexual harassment allegations, which featured testimony from Hill and Thomas. “According to sources who’ve seen the FBI report, nothing in it contradicted Hill’s story except nominee Thomas, who denied any harassment,” Totenberg’s reporting noted.

Democrats remained reluctant to delay Thomas’s larger Senate vote, and he went on to get confirmed 52 to 48, just a few days after Hill testified.

Grassley’s office has pointed out that the FBI investigation of Hill’s allegations took place when they had not yet been made public. “The purpose of the background investigation process is to compile information in a confidential manner,” he writes. “Because Dr. Ford’s allegations are in the public arena, there is no longer a need for a confidential FBI investigation.”

Trump has not signaled any interest in opening an FBI investigation

The White House clearly has the ability to ask the FBI to reopen or add to a nominee’s existing background check. But so far, Trump has signaled that he isn’t particularly interested in doing so. In fact, he’s tried to shift the onus onto the FBI even though the president is traditionally the one with the ability to prompt such reviews.

“I don’t think the FBI should be involved because they don’t want to be involved, if they wanted to be I would certainly do that,” Trump said at a press appearance on Tuesday. “As you say, this is not really their thing. The senators will do a good job.”

In the Hill case, both the majority and minority leaders of the Senate Judiciary Committee and the White House pushed for the FBI to create a report in response to Hill’s allegations.

This time around, though, only the Democrats are pushing for the same thing.

Throughout Kavanaugh’s entire confirmation process — well before the allegations of sexual assault emerged — Democrats have argued that Republicans are rushing to confirm the judge without giving the Democrats on the committee enough time to examine his record. They say that Republicans have unilaterally handled his vetting and obscured parts of his lengthy paper trail.

Now, Democrats are arguing that Republicans are once again rushing to vote on Kavanaugh’s confirmation before Ford’s allegations have been thoroughly and impartially investigated. And they’re calling on federal investigators to review the allegations and submit a report to the Senate Judiciary Committee before a hearing or vote takes place.

“A proper investigation must be completed, witnesses interviewed, evidence reviewed and all sides spoken to,” Feinstein said in a statement Wednesday. “Only then should the chairman set a hearing date.”

But Republicans are pushing back, insisting that no FBI investigation is needed and that the Democrats are merely trying to stall the vote. Instead, they’ve invited both Ford and Kavanaugh to testify publicly before the committee and address the allegations that way.

Ford previously said she would be open to testifying. On Tuesday, however, Ford’s lawyers sent a letter to Grassley saying Ford wants the FBI to investigate the alleged incident before she appears in front of the Senate.

Republicans are now saying that if she doesn’t testify Monday, they will proceed with the vote. Democrats don’t have much recourse if that happens.

All of this is occurring against the backdrop of the upcoming midterm elections

Republicans have long maintained that they’d like to get Kavanaugh’s confirmation squared away by early October, November at the latest. Democrats could stand to benefit if the vote does end up stalling.

If a vote takes place closer to the November 6 midterm elections, for example, Democrats could echo the arguments Republicans made to stymie Obama-era Supreme Court nominee Merrick Garland and claim that voters deserve to be heard before the Supreme Court vote takes place.

(Democrats’ wariness toward Grassley’s approach comes after Republicans blocked Supreme Court nominee Merrick Garland from getting a Supreme Court hearing and changed Senate rules to confirm Supreme Court Justice Neil Gorsuch to the Court.)

There’s also a slim possibility that Democrats could win back control of the Senate in the midterm elections. That wouldn’t immediately change things, but would give them significantly more leverage over judicial nominees in the future.

An FBI investigation and report doesn’t guarantee that the Senate would interpret its findings as vindicating Ford. After all, the Bush White House didn’t see its FBI report as vindicating Hill.

That seems to be a risk Ford is willing to take.

“While no sexual assault survivor should be subjected to such an ordeal, Dr. Ford wants to cooperate with the Committee and with law enforcement officials,” Ford’s lawyer wrote in a letter to the Senate Judiciary Committee. “As the Judiciary Committee has recognized and done before, an FBI investigation of the incident should be the first step in addressing the allegations.”