The Slatest

What Reopened FBI Background Checks Like Brett Kavanaugh’s Normally Look Like

Supreme court nominee Brett Kavanaugh testifies before the Senate Judiciary Committee on Capitol Hill in Washington, DC on September 27, 2018.
Supreme court nominee Brett Kavanaugh testifies before the Senate Judiciary Committee on Capitol Hill in Washington, DC on September 27, 2018. Andrew Harnik/Getty Images

On Friday, the Senate Judiciary Committee advanced Judge Brett Kavanaugh’s Supreme Court nomination to the full Senate on a party-line vote. In a surprise move, the committee also requested that the FBI conduct a supplemental background investigation of “current credible allegations against the nominee” after Sen. Jeff Flake seemed to come to a last-minute agreement with Democrats that he would not vote for Kavanaugh on the Senate floor without the probe being renewed. White House Press Secretary Sarah Huckabee Sanders announced that President Donald Trump had accepted this request and ordered the investigation reopened.

The demand came one day after Dr. Christine Blasey Ford testified that Kavanaugh sexually assaulted her while they were in high school in the early 1980s, which was followed by calls from the American Bar Association and the Dean of Yale Law School for a new investigation. Democrats on the committee spent much of Thursday’s hearing practically begging their Republican colleagues and Kavanaugh to request a reopening of the probe, with the judge repeatedly demurring and committee chairman Chuck Grassley arguing that he didn’t control the FBI.

The investigation carries pitfalls for those who wish to see Judge Kavanaugh confirmed following his highly public raging against what he claimed was a broad Democratic conspiracy to bring down his nomination and his often untruthful testimony. But it could also be a boon to those Kavanaugh supporters, offering the slimmest patina of legitimacy to a Supreme Court nominee who spent the previous day essentially telling half of the country to go to hell.

Ford, and a pair of other women who have accused Kavanaugh of sexual assault or abuse, have all asked that their allegations be investigated by the FBI. It is unclear, though, what the scope of the probe will be. There were multiple reports on Friday that the parameters would be established by the FBI. Presumably that was done to mollify Flake, along with some combination of Sens. Lisa Murkowski, Susan Collins, and Joe Manchin, who all praised the move and are currently undecided. The only public parameters established so far were that the investigation would be completed “no later than one week from” Friday and be “limited to current credible allegations.”

Again, if it is conducted properly, the investigation could present pitfalls for the nomination. Ford’s testimony was highly credible and Kavanaugh’s was full of evasions and outright holes. While both have answered questions before the Senate on Thursday, they will now have to face questions from putatively impartial investigators who won’t have five-minute time limits to their questioning. Other key witnesses, including Kavanaugh’s close high school friend and alleged accomplish, Mark Judge, will also presumably be questioned. Lying to the FBI is a federal crime.

Judge, through his lawyer, agreed on Friday to cooperate with any law enforcement probe so long as it is done “confidentially.” (Given that he is being accused of a separate state felony without a statute of limitations, that may be an unrealistic expectation.) During his testimony on Thursday, Kavanaugh insisted that Judge shouldn’t be made to testify, citing previous illness and drug problems. Just before the announcement was made, Sen. Ted Cruz argued that there would be no point in interviewing Judge because he would merely plead the fifth, a seeming acknowledgment that he is perhaps not the most reliable character witness in the world.

The FBI will be able to go down other lines of inquiries as well, though, such as interrogating the facts of Kavanaugh’s 1982 calendar and looking at floor plans for local homes to see if they match the description of those very specifically detailed by Ford in her testimony. “They’re going to sit down with all of those individuals, they’re going to have the existing factual record of what’s already been pulled together from the hearing and documentation of what’s been submitted in past testimony, and they’re going to pick through the story a bit,” said attorney Bradley P. Moss, who works on security clearances for government employees and sometimes for political appointees.

“There’s going to be an interesting question of whether and to what extent they’re going to really harp on details, like they would in a normal vetting, or if this is going to be more of a ‘checking the box’ type of investigation,” he added.

In a criminal investigation, FBI investigators would be able to look through those large number of discrepancies in Kavanaugh’s Congressional testimony to verify or falsify claims, and test whether he committed perjury. That doesn’t appear to be this type of investigation, though.

This points to the pitfalls for those who oppose Kavanaugh’s nomination. It’s very possible that the investigation turns up little that adds to the factual record, or that whatever it turns up with be revealed behind closed doors and subject to partisan spin. If that happens, we’ll be right back where we started in one week, with the fate of the court and the country to be decided by fewer than a handful of Senators.