Whitehouse suggested that the investigation into the sexual misconduct allegations against Kavanaugh was “fake” and did not follow proper procedures. The senator is right to ask for the review, but given the procedures that govern such investigations, he may be aiming at the wrong target.
Background checks for political appointees are run out of the FBI’s administrative rather than criminal division. This is important in terms of the scope and latitude that the FBI has in pursuing these investigations. A criminal investigation has every investigative tool at its disposal, and does not conclude until the crime or threat has been resolved. These investigations are (at least in a normally functioning Justice Department) independent and free of political interference from the White House or Congress.
By contrast, background checks like Kavanaugh’s are done on behalf of a requesting “client” — in this case, the White House. They are typically limited to interviews with people who know the subject and checks of criminal records and credit history.
When a person joins government service or is nominated for a post, an initial background check will cover every place a subject has lived, traveled or worked since they were 18. The subject usually provides references, the FBI interviews them and then asks for other references, building an expanding circle of information.
Background checks conducted after an initial background check — for example, if a person leaves government and returns a few years later — normally only go back to the end of the last check. This is important in understanding the scope of the FBI’s Kavanaugh investigation in 2018. After graduating from law school in 1990, Kavanaugh clerked for a federal judge, which would have required a background check.
This check would have likely encountered people who interacted with him in high school and college. Kavanaugh then alternated between private and government jobs until his appointment to the District of Columbia Court of Appeals in 2006. As a result, his 2018 background check would have only gone back to 2006, making the people interviewed well removed from his school years.
Of course, even Kavanaugh’s background check in 2018 would have likely uncovered possible red flags, like his large credit-card and other debts
. In looking into people’s lives, the FBI goes by the mnemonic CARLA F. BAD, which stands for Character, Associates, Reputation, Loyalty, Ability, Finances, Bias, Alcohol/Addictions and Drugs. Kavanaugh’s debts could have been considered potentially “derogatory” information affecting his suitability for employment.
His rapid paydown of debt
would also raise concerns, according to the Adjudicative Desk Reference
used for security clearance investigations (although Kavanaugh has said
friends reimbursed him for the tens of thousands of credit card debt he incurred by purchasing baseball tickets).
The decision of what to do with derogatory information is up to the client — in this case the White House. Normally, the White House and the president would ask the FBI to dig deeper, to make sure a nominee is fit for a position of public trust and to avoid being blindsided or embarrassed by any new revelations. But it doesn’t have to. The FBI cannot, on its own, determine whether a subject like Kavanaugh “passed” a background check or not based on what it uncovers. The “adjudicator” for that decision is — you guessed it — the White House.
Which brings us back to the FBI’s investigation into the allegations by Christine Blasey Ford. Because Kavanaugh’s 2018 background check had already been completed by the time the allegations arose, only the White House had the power to reopen the investigation, not the FBI. Further, the White House determined the scope of the new investigation and it gave the FBI only a week
to complete it.
The question that remains is: Did the White House hobble the reopened investigation in any other way? For example, did it instruct the FBI not to interview particular witnesses, like Ford herself? Were agents prohibited from accepting or following up on information provided by possible new witnesses? Any such restrictions would be fair questions for the Judiciary Committee to ask of the attorney general.
Had the FBI been conducted a criminal investigation, it would have left no stone unturned in getting to the truth. The FBI would have been free to obtain and follow leads through a tip line — as it has in its investigation of the Capitol insurrection — and could decide not only whom to interview, but also compel them to talk using judicial processes. But in an administrative background check, particularly one done on behalf of the White House, the FBI’s hands are tied.
Sen. Whitehouse should follow the paper trail, though he may find that it leads not to the FBI, but to the former president, Donald Trump.