The FBI's garbage chute

It was Friday, September 28, 2018, and Brett Kavanaugh's nomination to the Supreme Court was in serious trouble. 

The day before, Christine Blasey Ford had testified under oath that she was sexually assaulted by Kavanaugh when she was in high school. Trump described Ford's testimony as "very compelling" and "very credible." The AP reported that, after Ford's testimony and Kavanaugh's response, "it was clear Republicans were still short of votes for final Senate approval."

Republicans held a narrow 51 to 49 majority in the Senate. No Democrat had publicly backed Kavanaugh. And at least three Republican Senators — Jeff Flake (R-AZ), Lisa Murkowski (R-AK), and Susan Collins (R-ME) — had not committed to supporting Kavanaugh. 

Trump had resisted calls to reopen the FBI background investigation to examine the sexual assault allegations raised by Ford and other women. (The FBI had not reviewed the allegations in its initial probe.) But when Flake said he would not vote to confirm Kavanaugh without further action by the FBI, Trump had no choice but to agree. 

Trump said the FBI would be "talking to everybody" and would "have free rein" to "do whatever they have to do." Less than a week later, the FBI completed its supplemental investigation and Kavanaugh was quickly confirmed on a 50-48 vote. Republicans declared that the investigation found "no corroboration of the allegations made by Dr. Ford" or of another accuser, Debbie Rameriez. Flake and Collins, along with Senator Joe Manchin (D-WV), voted to confirm Kavanaugh on October 6. Murkowski voted "present."  

But this week, we learned that the FBI investigation was mostly a sham. And the truth about the investigation was covered up for years. 

The secret scope of the supplemental Kavanaugh investigation

Democrats were left "in the dark about the inquiry’s parameters." But press reports indicated that the White House decided "the breadth of the inquiry" working "in concert with Senate Republicans." 

The nature of the inquiry was addressed during a July 23, 2019 hearing with FBI Director Christopher Wray, who remains in that position. Kavanaugh and Wray overlapped at Yale Law School, where they were both members of the right-wing Federalist Society. They also worked together in the George W. Bush administration. 

Wray, who acknowledged he was personally involved with supervising the supplemental Kavanaugh investigation, testified that it was "consistent with our longstanding policies, practices, and procedures for background investigations." 

Senators Sheldon Whitehouse (D-RI) and Chris Coons (D-DE) were not satisfied with Wray's testimony. They wrote to Wray on August 1, 2019, with a series of questions. They were specifically concerned with a tip line that was established by the FBI as part of the investigation.

To the extent that the public did reach out to provide information — and we know they did — it appears the information disappeared into a "tip line." We still do not know how leads to FBI's tip line were processed and evaluated, or whether they were processed and evaluated at all. It is particularly unusual in a background investigation to deploy a "tip line," and we are not aware of that ever being done before.

Among other inquiries, Whitehouse and Coons asked whether any of the tips were vetted and whether any steps were taken to follow up on any of the tips. They gave Wray a deadline of August 30, 2019, to respond. 

For nearly two years, Wray ignored these questions. 

The FBI finally responds

The FBI finally responded to Whitehouse and Coons on June 30, 2021, in a letter authored by Assistant FBI Director Jill Tyson. "We apologize for the extended delay in responding," Tyson wrote, without providing any further explanation.

At the end of her two-page letter, Tyson briefly addressed the tip line.

Justice Kavanaugh's nomination was the first time that the FBI set-up a tip line for a nominee undergoing Senate confirmation. It was established at the direction of the FBI's Security Division to centralize and manage incoming information related to the nomination. The FBI received over 4,500 tips, including phone calls and electronic submissions. The Security Division section handling the FBI and supplemental background investigations provided all relevant tips to the Office of White House Counsel (as the requesting entity).

So while Wray testified the conduct of the Kavanaugh investigation was "consistent with our longstanding policies, practices, and procedures," Tyson admits that it was the first time the FBI had ever set up a tip line for a nominee. 

According to Tyson, the "relevant" tips, which would be information "that raises questions of the candidate's suitability or trustworthiness," were forwarded to the Office of the White House Counsel. That office was headed by White House Counsel Don McGahn, a close ally of Kavanaugh who was "working nearly nonstop to protect the nomination by serving as both lawyer and crisis communications adviser to Trump and Kavanaugh."

Despite being asked specifically by Whitehouse and Coons in 2019, the FBI did not indicate that the bureau took any further action to investigate or confirm any of the "relevant" tips. "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," Whitehouse and Coons responded in a July 22, 2021 letter to the FBI. 

On Twitter, Whitehouse was blunter. He described the investigation as a "scam" and the "tip line" as a "garbage chute to a White House Counsel desperate to cover up the facts." 

Ford's lawyers speak out

In a statement, Debra Katz and Lisa Banks, lawyers for Blasey Ford, said the FBI's admissions in its June 30 letter prove the investigation was a "sham." 

The letter from the Department of Justice, released by Senator Sheldon Whitehouse's office today, confirms what we knew: The FBI’s investigation into Dr. Christine Blasey Ford's serious allegations about Justice Brett M. Kavanaugh's sexual misconduct was a sham and a major institutional failure. Not only did the FBI refuse to interview Dr. Ford or the corroborators listed in our letter to FBI Director Wray, it failed to act on the over 4,500 tips it received about then-nominee Kavanaugh. Instead, it handed the information over to the White House, allowing those who supported Kavanaugh to falsely claim that the FBI found no wrongdoing.

Katz and Banks said an investigation into alleged sexual assault "never should have been an ordinary background check." Further, evidence relevant to such allegations should have been referred to the "Criminal investigations division." Wray, the lawyers said, must explain why he "hid the ball."

The right-wing response

Conservative media, which dismissed the allegations of Blasey Ford and other women in 2018, were quick to rally to the defense of the FBI. In the National Review, John McCormack wrote an article last Friday headlined, "Brett Kavanaugh Faces Another Round of Smears and Intimidation."

McCormack argues that the 4500 tips were not consequential because "a summary of all the tips the FBI received was available to all 100 U.S. senators." This grossly distorts the value of the tips. The information provided to the tip line is not valuable on its own. That is because, by definition, tips are unverified. It's up to the FBI to take those tips, identify the ones that contain relevant leads, and follow up to establish facts. 

Here, the FBI identified the most relevant leads but instead of following up, funneled that information to the White House. Senators were not in a position to follow up or evaluate the tips. The FBI report was reportedly 1,000 pages long and only one copy was made available for the entire Senate, severely limiting the time any individual member could spend with the document. Members of the Senate were not permitted to take notes out of the secure reading room or discuss any of the details of what they read. 

Why the FBI investigation into Kavanaugh still matters

Kavanaugh has a lifetime appointment to the Supreme Court and nothing the Senate discovers about the FBI investigation will change that. But Wray, who was appointed FBI Director by Trump, was retained by Biden. "President Biden intends to keep FBI Director Wray on in his role and he has confidence in the job he is doing," White House Press Secretary Jen Psaki said in January

But if it’s proven that Wray handled the Kavanaugh investigation inappropriately to serve the political interests of the Trump administration, would Biden maintain that confidence?

Whitehouse and other Senators are continuing to seek clarity on what the FBI did and why. In their July 22 letter, the Senators ask Wray a series of probing questions about his arrangement with the White House, the tip line, and why the FBI declined to interview Kavanaugh or Blasey Ford. 

The Senators set a deadline of August 31, 2021, for answers. Hopefully, they won't have to wait as long this time for a response.