FILE - In this Feb. 5, 2019 file photo, Supreme Court Associate Justice Brett Kavanaugh watches as President Donald Trump arrives to give his State of the Union address to a joint session on Congress at the Capitol in Washington. (Doug Mills/The New York Times via AP, Pool)
July 24, 2022- 2:43 p.m.
It appears Washington has another conspiracy to make this a long hot summer.
Indeed, the conspiracy du jour has all of the favorite elements: a corrupted FBI, a powerful protected person, buried evidence of possible crimes.
If it sounds like a Russia investigation redux, think again.For years, Democrats in Congress defended the FBI over its mishandling of the Russia collusion investigation.
Sen. Sheldon Whitehouse (D-R.I.) denounced those alleging a “sham investigation” as “spreading a false narrative” for political purposes.
Now, however, Whitehouse and other Democrats are denouncing the same FBI as having run a “sham” investigation.
The disclosure that the FBI received thousands of uninvestigated “tips” against now-Justice Brett Kavanaugh also led columnists to characterize the investigation as anything from “laughable” to “lying” in a confirmation coverup.
And Slate’s Dahlia Lithwick may have set a record for “sham” references (six) in a single short column, declaring that “because the shamming … happened openly, the revelation that it was shamatory feels underwhelming.
We have become so inured to all the shamming in plain sight that having it confirmed years later barely even feels like news.
“It may not “feel like news” because the most newsworthy aspect of this controversy is, instead, the renewed – mostly implicit – call to remove Kavanaugh from the Supreme Court. And that’s not even news.
The DOJ conducts background investigations pursuant to a March 2010 memorandum of understanding (MOU) between the DOJ and the White House.
Under the Obama MOU, the FBI promptly notifies the “requesting entity” if it learns of new information before a candidate assumes a nominated position which would raise questions about the “candidate’s suitability or trustworthiness.”
Clearly, the FBI can investigate any substantial evidence of a crime. However, the background investigation itself is not a criminal investigation.
Kavanaugh’s first background investigation was completed and disseminated on July 18, 2018, after interviews with 49 individuals over five days.
On Sept. 12, 2018, a Democratic senator sent the FBI information regarding allegations of sexual assault. That was almost a week after the confirmation hearing for Kavanaugh had ended.
The FBI sent the information to the Trump White House the next day and, on that day, the White House asked the FBI to perform a limited investigation on the new allegations.
The FBI spent six days investigating and interviewing 10 more people. It did so, again, not as a criminal investigation but as “an investigative service provider” under the Obama-era MOU’s terms.
It also took the unprecedented step of creating a “tip line” to facilitate the process and ultimately sent those tips to the White House, also under the Obama MOU.
For those of us who encouraged further investigation, it already was known that the FBI was swamped with often-anonymous “tips” during that heated week.
The confirmation process became a rage-fest among senators, the press, and the nominee himself. Reporting that the FBI received 4,500 tips is hardly surprising.
Indeed, the number seems modest, given the coverage of the tip line and advocacy groups pushing for new allegations.
Moreover, given the short extension of the Senate for the “supplemental investigation,” no one could possibly believe the FBI would run down most, let alone all, of the tips.
Finally, there is no indication of whether there were credible claims of criminality or wrongdoing in this torrent of tips.
Calls to impeach Kavanaugh or prosecute him for perjury arose shortly after his confirmation from then-Sen. Kamala Harris (D-Calif.), Sens. Cory Booker (D-N.J.) and Elizabeth Warren (D-Mass.), former Rep. Beto O’Rourke (D-Texas) and others.
These advocates are trying to create new precedent to reopen confirmation hearings and expose justices to ongoing investigations with shifting majorities in Congress.
The fact that many of these critics refer to Kavanaugh’s conservative rulings only emphasizes their raw political motives.
There are legitimate questions to raise about the FBI’s delayed response, and even a possible need for new background-investigation procedures for nominees. But the Senate declaring open season on a sitting justice would do great harm to both institutions.
That would do more than “dilute” the court. It would destroy it.
