The Phony Demand for ‘FBI Investigations’ of Kavanaugh

In this Sept. 4, 2018, file photo, President Donald Trump's Supreme Court nominee Brett Kavanaugh is sworn in before the Senate Judiciary Committee on Capitol Hill in Washington.

By Bruce Chapman Published on September 27, 2018

We are hearing repeated calls for “FBI investigations” of charges that Supreme Court nominee Brett Kavanaugh committed sex crimes in high school and college. It sounds like something the FBI would examine in its background checks, right? The reality, however, shows that the demands are stalling tactics. They trade on the public’s confusion about the FBI’s role in the confirmation process.

An FBI background investigation, or full field report, is not a criminal probe. The FBI does check on criminal or civil court records. Any red flag raised at that stage probably would terminate a nomination even before it was announced. In six FBI background checks, nothing criminal was found in Judge Kavanaugh’s background.

FBI agents also interview scores of people who have known a nominee. These interviews go, unedited, to the Senate committee handling the confirmation. There are no assurances that interviewees’ statements are reliable, however. Often, people contradict one another, or even themselves. The FBI does not pretend to judge their truthfulness.

The way the FBI’s role is explained officially should be improved.

Senators also get a collection of forms filled out by the nominee himself. These detail, for example, every place a nominee has ever lived, every job held, every group joined, etc. The information is vetted for possible problems by the White House counsel’s office and run through the Office of Government Ethics.

The common confusion about the FBI is part of the reason the nominating and confirmation process has become a mess. People think it’s something it’s not. Even two years ago, Chief Justice John Roberts, speaking of judicial nominations, declared that “the process is not working very well.”

The Misuse of Background Checks

Some of the blame resides in the Senate itself. In recent decades hostile members and staff have leaked to the media selective information gleaned from the FBI’s full field file reports on nominees. Media coverage then implies, wrongly, that an “FBI Background Check” is a dependable source of information. In their disguised leaks, Senators and staff are trying to defeat the president’s nominee through public opinion. The leaking is illegal, but the media understandably almost never will expose their sources.

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One way to prevent the misuse of background checks would be to change the wording of the titles on the FBI’s full field background report. It most accurately might be described as an “Unverified Background Report.” Write that on the title page, boldly. A small change like that would make it harder for media to misrepresent it.

Of course, nothing in Judge Kavanaugh’s six FBI background checks uncovered the kind of accusations that have been lavishly displayed in the news lately. If they had turned up and were included in the FBI file, he would have been able to deal with them earlier. But, the charges did not go through the normal route. The lead Democratic Senator on the Judiciary Committee, Diane Feinstein, received a letter from Dr. Ford last July. However, it held the letter back until Judge Kavanaugh’s hearings were over. That allowed the nominee’s opponents to game the confirmation system.

Now we have two new allegations. They appear so flimsy and contrived that they raise the suspicion of celebrity seeking. This is how far the misuse of the confirmation process has sunk.

The way the FBI’s role is explained officially should be improved. But the media also bears responsibility for reporting that role honestly.

 

Bruce K. Chapman is the author of the recently published Politicians: The Worst Kind of People to Run the Government, Except for All the Others. He is Chairman of the Board of Discovery Institute and is a former city, state and federal official.

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