kavanaugh investigation

FBI’s Kavanaugh Investigation May Be Designed to Fail

As candidate Trump used to like to say, watch out for the rigged system. Photo: Win McNamee/Getty Images

It’s been two days since Senate Republicans and President Trump agreed to allow a limited, one-week-only FBI investigation into allegations of sexual assault by Supreme Court nominee Brett Kavanaugh, and “limited” has already become that investigation’s defining feature. It’s also not officially an investigation at all, but a background check, which means the FBI is working for the White House and following their instructions. Those instructions first of all set boundaries, and though Trump, the White House and GOP leaders can change what they ask from the FBI. There’s a lot of confusion around what they will or won’t allow. CNN reports that Senate Republicans and the White House are working to keep the investigation as narrow as possible, and so far that means excluding one of Kavanaugh’s accusers, Julie Swetnick, and multiple people who might be able to corroborate the other allegations.

The list of interviewees can expand if the FBI wants to question more people, but to do so it will reportedly have to make requests to be approved by the White House, giving Trump and GOP leaders the power to strategically limit the investigation in order to protect Kavanaugh if they choose. With five days remaining in the arbitrary one-week timeframe demanded by Republicans, it’s looking more and more likely that the investigation will be so limited as to be almost pointless — other than in giving a handful of Senate Republican skeptics enough cover to confirm Kavanaugh. The nominee is now “too big to fail,” a Kavanaugh team member told Axios on Sunday, stating that the White House has no backup plan if his nomination gets sunk.

Following reports from NBC News and The Wall Street Journal on Saturday that Trump and the White House were limiting the FBI’s investigation, the president insisted in a tweet on Saturday night that they were not. Instead, Trump claimed, he wanted the FBI to “interview whoever they deem appropriate, at their discretion.” It’s still possible that Trump will allow that, but that’s not what he, the White House, and the GOP have done so far. Trump commented on the issue again on Sunday, and his mocking of calls for a more thorough investigation as an “obstruct and delay” tactic are unlikely to calm the criticism.

Also on Sunday, Trump advisor Kellyanne Conway told CNN that the investigation “was not meant to be a fishing expedition,” while insisting that the White House trusts “the hardworking men and women of the FBI to do their jobs, and they will determine what will be included within that scope.”

“The White House is not micromanaging this process,” Sarah Huckabee Sanders claimed on Fox News Sunday.

But according to the New York Times’ sources, “The White House has asked that the FBI share its findings after investigators complete [the initial] interviews, and at that point, Mr. Trump and his advisers would decide whether to have the accusations investigated further.” That team of advisors will reportedly be led by White House counsel Donald McGahn, a longtime friend of Kavanaugh’s who CNN reports has already tried to restrict the probe as much as possible. And regarding Trump’s tweet on Saturday, The Wall Street Journal reported that “one person familiar with the FBI’s thinking said it was unlikely that the shape of the investigation would change without official communication from the White House that it wanted the bureau to interview other people beyond the list already provided.”

In other words, the only free rein the FBI apparently has is to conduct their interviews with preapproved witnesses as they see fit, then ask the White House for permission to interview additional witnesses, and the decision of whether to allow that will be largely in the hands of McGahn, who helped groom Kavanaugh for the nomination in the first place, then helped him prepare to defend himself against the allegations last Thursday.

Senate Democrats on the Judiciary Committee were not included in the planning process. One of its members, Amy Klobuchar, rejected the GOP’s limitations during an appearance on CBS’s Face the Nation on Sunday, likening them to Senate Republicans and the White House asking the FBI to “interview the people in their neighborhood on one side of the street.”

So far, the people whom Senate Republicans and the White House are permitting to be interviewed are, in addition to Kavanaugh and Christine Blasey Ford: Mark Judge, Kavanaugh’s high school friend and alleged accomplice in the attempted rape of Ford; Deborah Ramirez, who has accused Kavanaugh of exposing himself to her in college; Leland Keyser, a high school friend of Ford’s who Ford says attended the party where she was assaulted; and P.J. Smyth, a friend of Kavanaugh’s who was also allegedly at the party. Christine Blasey Ford has not been contacted by the FBI for an interview yet, either, and it’s not clear as of midday Sunday when agents will speak with her.

The FBI already spoke with Ramirez on Sunday, and she reportedly supplied them with the names of witnesses who could corroborate her story. It’s not clear if they will get approved or be available in such a limited time frame. We also don’t know if the FBI will talk to the people Ford had told about her alleged assault over the years, or to other attendees of a July 1, 1982 party on Kavanaugh’s teen calendar which he, Judge, and Smyth apparently attended. Ford has also mentioned using tax records to figure out when Judge worked at a local supermarket, because it would possibly help her narrow down a date-range for the party, but that may not be investigated, either.

And it seems very clear that there won’t be any effort at all, at least this week, to investigate whether Kavanaugh perjured himself during his testimony on Thursday, as several classmates, as well as people with access to Urban Dictionary, have alleged he did. (For an exhaustive analysis, read here.)

The limitations are the work of Senate Republicans, said Conway and Sanders while defending the White House on Sunday. Senate Judiciary Committee member Lindsey Graham, who launched a tirade in defense of Kavanaugh on Thursday and has called the allegations against Kavanaugh “garbage,” said on Sunday that it was GOP senators Susan Collins and Lisa Murkowski who wanted a “limited review” with so few people being interviewed. “They wanted [the FBI] to talk with the witnesses that Dr. Ford named,” Graham claimed, as well as Ramirez, “because she refused to talk to the committee.”

Graham also justified not interviewing Swetnick, who says Kavanaugh and Judge once watched a girl get gang raped at a party in high school. The FBI didn’t need to talk to her, he said, because no Democrats mentioned her at the hearing on Thursday. The FBI will also probably ask Judge (who has already denied everything) about Swetnick’s allegation when they speak with him about Ford’s allegation.

According to The Wall Street Journal, Senate Republicans allowed themselves the freedom to do whatever they wanted, reporting that on Friday, the committee’s call for an investigation “limited to current credible allegations” was, according to one Republican aide, “purposefully vague as to what that would include because there wasn’t consensus among its GOP members.”

The bottom line, as of now, is that this will probably not be an investigation in the sense that one would assume when told that the FBI was going to investigate something. Former FBI director James Comey is more optimistic, penning a New York Times op-ed criticizing the imposed length of the investigation, but insisting that his former colleagues are “up for this,” as well as that uncovering the truth is “not as hard as Republicans hope it will be.”

But Comey also offers an important caveat to his prediction, noting that while “FBI agents are experts at interviewing people and quickly dispatching leads to their colleagues around the world to follow with additional interviews,” they can only speak to all those people if they are not “limited in some way by the Trump administration.”

The investigation, as it currently stands, was designed and will be subsequently managed by Kavanaugh’s closest allies, and half of the witnesses being interviewed so far are or were Kavanaugh’s friends, one of whom faces the same allegations himself. And the limitations and lack of transparency are likely to keep up until the clock runs out on Friday, unless the probe uncovers something explosive or there are complaints from the three Republican senators who requested the “limited” FBI investigation in the first place.

Senator Collins seems to have simply wanted Mark Judge to answer investigators’ questions. Senator Murkowski, meanwhile, said in a statement Sunday that she “supports limiting [the investigation] to current and credible allegations against the nominee” but that “the FBI can make that determination.” As for Senator Jeff Flake, who has been collecting interviews since his dramatic intervention in favor of the probe on Friday, he seemed to think the FBI was free to look into whatever it wanted in his 60 Minutes interview on Sunday. Whether or not Murkowski or Flake will insist on an investigation whose scope is independently determined by the FBI — we’ll have to wait and see.

It’s also possible that Kavanaugh will not escape scrutiny forever. On ABC’s This Week on Sunday, Congressman Jerry Nadler — who would likely chair the House Judiciary Committee if the Democrats win back the House in November — issued a warning to the GOP and the White House: If they don’t investigate the allegations against Kavanaugh “properly,” a Democrat-controlled House “will have to.”

“We would have to investigate any credible allegations of perjury and other things that haven’t been properly looked into before,” Nadler said, which also means Kavanaugh could face impeachment proceedings if the investigation uncovered any wrongdoing. And Democrats could and would turn the issue into a base-mobilizing agenda item in these final weeks before the midterms.

FBI’s Kavanaugh Investigation May Be Designed to Fail