I served as director of President Barack Obama’s presidential personnel office and oversaw hundreds of appointments across the U.S. government. So I know firsthand that Judiciary Chairman Sen. Chuck Grassley’s claim that “it is not the FBI’s role to investigate” the allegations that Judge Brett Kavanaugh assaulted a woman when they were in high school is downright false.
The FBI, which would already have performed an extensive background check on Kavanaugh in connection with his nomination to the Supreme Court, can pick up its investigation and check into the issues that the woman accusing Kavanaugh of assault has raised more quickly, more effectively and more sensitively than untrained Senate committee staffers can. Such an FBI investigation should certainly come before Christine Ford Blasey is subjected to questioning from the Senate or its staff members – not only because that’s what Ford has requested but because it’s only fair for senators to question her (or Kavanaugh) with the additional information that the FBI’s work would surely yield, and because it gets us closer to the truth.
What Ford and her attorney are requesting would be a continuation of the FBI’s background check investigation, which is different in scale and scope than a criminal investigation. This sort of request is not unusual, and it’s not surprising the information wasn’t included in Kavanaugh’s previous background investigations. In the Obama administration, when new information about a nominee came to light, we’d request a follow-up. Sometimes we would do so when there were gaps in the initial investigation, and sometimes we did it at Republican committee members’ behest. I recall one instance when a Republican senator wanted more information about an allegation that a nominee created a hostile work environment. Another time, a GOP lawmaker requested that we ask the FBI to follow up on a years-old sexual harassment and discrimination complaint made against a nominee.
The FBI does not complete background investigations of its own volition. The White House is its customer in this process – the president asks, and the FBI investigates. The White House can ask for further investigation even after a nomination is made. The Judiciary Committee, in particular, was notorious for demanding follow-up on even mundane issues, like discrepancies in a candidate’s resume, or verifying the year a nominee graduated from college. Simply put, President Donald Trump’s claim that the FBI “doesn’t do” investigations like this is only true because, in this case, he hasn’t asked them to.
Often, even in complex cases, follow-up inquiries can be completed in a matter of days. We had cases involving allegations of sexual and domestic violence where we immediately asked the FBI to supplement an initial background inquiry. The FBI has field agents across the country, and many of them are trained to deal specifically with questions of sexual violence.
So Grassley, R-Iowa, is just wrong to assert to Ford’s attorneys that the FBI has no further role in investigating the account Ford has given. And the Senate can, and regularly does, use its power to halt a nomination until this kind of investigation is complete. Or at least, it used to. These days, Senate Republicans, the White House and Trump, in particular, appear to have no willingness to direct the FBI to actually get to the bottom of these allegations.
Trump is no stranger to nominating individuals of dubious suitability. Long before Kavanaugh’s nomination was announced, Trump already appeared to be casting aside the tradition of White House staff members fully and dutifully vetting nominees, even when they may get answers the president may not want to hear. (See, e.g., Trump former EPA Administrator Scott Pruitt, former labor secretary nominee Andrew Puzder and former Veterans Affairs nominee Rear Adm. Ronny Jackson.)
When I was in the White House, though, we subjected each and every one of Obama’s nominees to a grilling. We asked uncomfortable questions. More than once, a nominee said the only equivalent to going through our process was getting a colonoscopy.
Often, we asked questions that we knew would reveal information that could jeopardize an individual’s nomination prospects. That was not just because we wanted to avoid political distractions that could harm the president’s agenda but also because we believed that we owed it to the president and the American people to uncover everything we could about a nominee’s background, even when we knew there would be consequences. And we’d raise these issues with the background investigations unit at the FBI, where agents would take them seriously and pursue them to the best of their ability.
Unlike partisan Senate investigators, who have an interest in shepherding Trump’s pick through the confirmation process, FBI agents are specially trained to deal with accusations like Ford’s. They can do it quickly and in a way that respects both her rights and Kavanaugh’s. Rushing to subject Ford to questions from Senate staff or from the all-male Republican members of the Judiciary Committee, who have nothing close to the experience and training of career FBI agents, is totally backward.
Grassley’s offer to conduct any inquiry behind closed doors is also a transparent attempt to pay lip service to the complications of a sexual violence inquiry without any real due diligence. Lacking a full accounting of what occurred, interviews from witnesses or the additional information that an FBI investigation could yield, such testimony would be nothing more than a farce, pretending to take seriously accusations of a grave offense.
To be sure, we made our mistakes in the Obama White House. FBI background investigators are humans and make mistakes, too. There were instances when we knew background checks by the FBI were incomplete, though we always raised those gaps within the White House and with FBI investigators. But a Trump White House and a Senate committee that will stop at nothing to hustle a nominee onto the nation’s highest court appear to have no such scruples. They are not even interested in the truth.
Rudy Mehrbani is Spitzer fellow and senior counsel at the Brennan Center for Justice. He served as assistant to the president and director of presidential personnel and as associate White House counsel in the Obama administration.
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