Sen. Sheldon Whitehouse has spent nearly three years attempting to understand the nature of the FBI’s “supplemental investigation” of claims that emerged against Justice Brett Kavanaugh during his confirmation hearings in the summer of 2018. The senator’s attempts to get answers from either the Trump White House or the FBI were largely unsuccessful while Trump was still in office. But Whitehouse kept trying—almost as soon as Merrick Garland was sworn in as attorney general, Whitehouse asked him to help facilitate “proper oversight” by the Senate into questions about how serious the FBI supplemental investigation really was.
Whitehouse asked Garland to explain why there was no mechanism for witnesses to report their accounts to the FBI, and why, after the FBI decided to create a “tip line,” nobody was ever told how the tips were evaluated. In his March letter to Garland, Whitehouse described that tip line as “more like a garbage chute, with everything that came down the chute consigned without review to the figurative dumpster.” Whitehouse asked Garland to explain “how, why, and at whose behest” the FBI conducted a “fake” investigation that violated standard procedures. Whitehouse also asked Garland to probe into the tens of thousands of dollars in credit card debt that mysteriously vanished from Kavanaugh’s life in 2016.
And it seems he has finally gotten at least some answers. On Wednesday morning, Whitehouse’s office released a June 30 letter from FBI Assistant Director Jill C. Tyson. The letter is a response to an even older request sent by Whitehouse (and Sen. Chris Coons) asking similar questions about the supplemental background investigation—this one, sent to the FBI in August 2019. Among other revelations, Tyson’s letter indicates that the FBI’s supplemental investigation happened at the direction of the White House, that the most “relevant” of the 4,500 tips the agency received were referred back to White House lawyers in the Trump administration, and that in the days of the follow-up investigation, 10 people were interviewed (it doesn’t say this, but other reporting has confirmed that neither Christine Blasey Ford nor Kavanaugh were among these 10 people). The letter clarifies that this was a supplemental background check—not a criminal investigation—because that is what was sought by the White House Counsel’s Office.
Whitehouse and Coons, joined by five other Democratic senators, sent a follow-up letter to FBI Director Christopher Wray, dated Wednesday, asking for an explanation of how the tips were evaluated, what follow-up occurred, and why the FBI failed to interview key witnesses. As they put it, “If the FBI was not authorized to or did not follow up on any of the tips that it received from the tip line, it is difficult to understand the point of having a tip line at all.” In other words: Why was this a sham investigation?
Whitehouse tweeted on Wednesday that he believes facts that were hidden and suppressed at the time still need to be made public, especially in light of the current debate about reforming the judicial ethics rules that do not apply to the justices. And he said that part of the reason he has persisted in his investigation of the fake FBI investigation is because he made a promise to Christine Blasey Ford at the hearings that he would not deny her the rigorous inquiry that her life-altering decision to come forward should have received.
It is, in a sense, hard to be horrified by the explicit confirmation from the FBI that this was indeed a sham investigation, simply because much of this was known at the time and more has emerged since. The sham occurred in plain view, as did the decision to dismiss all of the 83 judicial ethics complaints lodged against Kavanaugh at the time, because Supreme Court justices are not bound by the judicial ethics regime tasked with investigating them. In a sense, then, because the shamming always 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 feel like news.
But it still behooves me to point out that even though it’s not clear anything can be done to someday see or evaluate those 4,500 unexamined tips sent to Don McGahn’s team (the same team that was tasked with confirming Kavanaugh to the bench) or about the 83 ethics complaints that were sent to the shredder, one thing has changed: Brett Kavanaugh is now the reliably median “swing” justice on the most conservative Supreme Court in almost a century—a court in which John Roberts may occasionally vote with the liberal wing so it can lose by a 5–4 margin. It is Kavanaugh who may well bring about the demise of abortion protections, robust voter protections, gun safety laws, and a host of other doctrinal changes that have made the court more pro-business and more anti-worker every year. So it isn’t just that Kavanaugh has lifetime tenure at the high court because there was no meaningful investigation of whether he was qualified. It is also that due to his new swing-ish vote status, every litigant who appears before him, every Supreme Court advocate who wants to curry favor, every lower court judge in the land, and every other sitting Supreme Court justice must devote their days to efforts to praise and charm and win him over. Which means that the only way to win at the high court involves Washington absolving him, every single day, of allegations that were not even surfaced, much less adjudicated by any fact-finding entity. And if that’s not absolute power, I’m not really sure what is.