Travesty Justice: How the FBI's Failure to Vet Brett Facilitated Kavanaugh's Confirmation

A new Senate report exposes the fatal flaws in the Bureau's supplemental investigation into the sexual assault allegations against Justice Kavanaugh—and six years of executive-branch stonewalling.

Six full years after Brett Kavanaugh’s fractious confirmation hearing, and forty-three-and-a-half months after LB and I published the first installment of our five-part “Who Owns Kavanaugh?” series, we are no closer to answering the titular question—even as the tallest and tipsiest Supreme Court Justice has merrily voted with the other five reactionaries on the bench to overturn Roe v. Wade, kneecap federal regulatory agencies, weaken firearms restrictions, betray the letter and spirit of the Fourteenth Amendment, and grant the President full immunity for “official acts.”

Brett Kavanaugh is a blight on the Supreme Court. His inclusion among the nine Justices diminishes the entire institution, makes a mockery of judicial impartiality, and is a metaphorical middle finger to every woman in the United States. One SCOTUS Justice credibly accused of sexual misconduct is too many (and look at what a corrupt piece of shit Clarence Thomas turned out to be); two such jurists on the high court feels like an intentional troll—a cruel, sick joke of the kind that would have amused recipients of Judge Kozinski’s gag emails.

This petulant lout should never have been nominated, much less confirmed. No decent human who watched Christine Blasey Ford’s powerful testimony could honestly think that her account was—as Kavanaugh himself charged—a “calculated and orchestrated political hit.” Indeed, even Republican Senators bent over backwards to assert that they believed her.

But those same Republican Senators voted to confirm Dr. Ford’s (alleged) assailant anyway. Why were they able to get away with this? Because the FBI’s supplemental investigation into the incident found “no corroboration of the allegations made by Dr. Ford” or a second alleged sexual assault victim, Deborah Ramirez. The GOP Senators used the results of that FBI investigation as political cover for their “Yea” vote. It was Susan Collins at her Susan Collinsest.

And now, at long last, after six years of dogged pursuit of the facts by Senator Sheldon Whitehouse, we find that the much-ballyhooed FBI investigation was a bunch of malarkey. In a new 32-page report, Unworthy of Reliance: The Flawed Supplemental Background Investigation Into Sexual-Assault Allegations Against Justice Brett Kavanaugh, Whitehouse explains that,

[a]fter nearly six years of seeking answers from an obstinate executive branch, Senate investigators have pieced together a picture of a flawed and incomplete supplemental background investigation that was unworthy of reliance by the Senate.

At the time of Kavanaugh’s confirmation vote, many Senators cited the FBI’s supplemental background investigation—and the apparent dearth of corroborating evidence it uncovered—to justify their votes to confirm Kavanaugh. But that investigation could not have produced the corroborating information those Senators demanded. The FBI did not take basic investigative steps it would have taken in other contexts, like interviewing potentially corroborating witnesses and following up on relevant tips that could have yielded corroborative evidence.

This all went down in 2018—before the release of the Mueller report, before the pandemic, before the impeachments and the insurrection. That feels like ages ago. The intervening 72 months have been busy.

So, to refresh our memories, here is a short timeline:

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9 July 2018
Trump nominates Kavanaugh to the Supreme Court.

4 September 2018
Confirmation hearings begin, with the focus on Kavanaugh’s sleazy work experience as a political operative, his shady finances, his involvement in underhanded activity in the Bush fils White House, and his inexplicable and expensive enthusiasm for Washington Nationals baseball.

13 September 2018
Senator Feinstein refers Christine Blasey Ford’s letter to the FBI.

23 September 2018
The New Yorker reveals allegations made by a second sexual assault victim, Deborah Ramirez, a Yale classmate of Kavanaugh’s, who alleges that back at New Haven he “exposed himself at a drunken dormitory party, thrust his penis in her face, and caused her to touch it without her consent as she pushed him away.” (Never happened, says Brett.)

27 September 2018
Ford and Kavanaugh both appear before the Senate Judiciary Committee in a special hearing. “Indelible in the hippocampus is the laughter,” she recalls, with obvious and painful sincerity. “The uproarious laughter between [Kavanaugh and his buddy Mark Judge], and they’re having fun at my expense.”

Kavanaugh testifies that he “never had any sexual or physical encounter of any kind with Dr. Ford,” and accuses the Democrats of running a “calculated and orchestrated political hit fueled with apparent pent-up anger about President Trump and the 2016 election,” or, alternatively, “revenge on behalf of the Clintons.”

After much public protest, the Committee agrees to allow the FBI to conduct a week-long investigation “limited to current credible allegations against” the SCOTUS nominee. The FBI sets up a “tip line,” which almost immediately receives hundreds of responses.

28 September 2018
In a follow up to its original story, The New Yorker reports that the staff of Senator Chuck Grassley, then the chair of the Judiciary Committee, “stymied” Ramirez’s attempts to provide testimony.

4 October 2018
The FBI’s investigation concludes. As the Whitehouse report states (boldface his):

As soon as the FBI completed its supplemental background investigation, Judiciary Committee Republicans issued an “executive summary” concluding, “[t]he Supplemental Background Investigation confirms what the Senate Judiciary Committee concluded after its investigation: there is no corroboration of the allegations made by Dr. Ford or Ms. Ramirez.” Then-Majority Leader Mitch McConnell echoed this line, asserting, “[w]hat we know for sure is the FBI report did not corroborate any of the allegations against Judge Kavanaugh” and “[t]he fact is that these allegations have not been corroborated.”

• Other Senators who voted for Kavanaugh’s confirmation had similar reactions:

• Senator Shelley Moore Capito: “There was no new corroborating evidence.”

• Former Senator Bob Corker: “The supplemental background investigation found absolutely zero corroboration of the allegations that have been made.”

• Former Senator Jeff Flake: “[W]e’ve seen no additional corroborating information.”

• Then-Senate Judiciary Committee Chairman Chuck Grassley: “These uncorroborated accusations have been unequivocally and repeatedly rejected by Judge Kavanaugh, and neither the Judiciary Committee nor the FBI could locate any third parties who can attest to any of the allegations.”

Senators also cited the perceived thoroughness of the FBI’s supplemental background investigation. Senator Susan Collins commented that the FBI investigation “appears to be a very thorough investigation,” while Senator Capito said, “I’m satisfied it was comprehensive, so I feel confident in the report.” Senator Graham said he was “more confident than ever of Brett Kavanaugh that the allegations levied against him were not proven to be more reliable” in part because FBI agents “were given the latitude they wanted. Nobody told them where to go, who to interview or how to interview them.”

As it turns out—and as many Americans suspected at the time; indeed, as many news articles suggested at the time—this was all bullshit. The investigation, such as it was, was slapdash. The FBI did not follow up on any of the tips and wound up interviewing just ten people. Incredibly, the Bureau didn’t even talk to Kavanaugh or Ford!

The main reason the investigation was so poor was that Trump’s short fingers were on the scale. As with his impeachable interactions with President Zelenskyy of Ukraine, Donald only wanted the appearance of an investigation, not the real McCoy. This paragraph of the Whitehouse report is particularly infuriating:

The FBI’s supplemental background investigation into the sexual-assault allegations against Kavanaugh was unreliable, not because of FBI ineptitude, but because the Trump White House tightly controlled the scope of the investigation, preventing the FBI from conducting a thorough investigation that followed all relevant leads as it would in other investigative contexts. The Trump White House strictly controlled which witnesses the FBI was authorized to interview and which leads the FBI could follow. Indeed, the Trump White House specifically declined to authorize the FBI to interview witnesses and pursue tips that might have uncovered the corroborating information some Senators later claimed was lacking.

So yeah, the investigation was bullshit, just like we thought. It was bullshit, and the Republican Senators all knew it. But that didn’t stop them from citing the helluva job the Bureau did in justifying their vote for an admitted beer-lover and an alleged sexual assailant:

Senators likewise characterized the supplemental back background investigation as having been conducted independently pursuant to existing FBI policies and without “politicians telling the agency how to do its job.” Senator Mike Lee, a member of the Judiciary Committee, denied reports that Republican Senators dictated the precise scope of the FBI’s supplemental background investigation, saying, “[t]he FBI was requested to conduct an investigation into any and all credible, current accusation[s] of sexual misconduct by Judge Kavanaugh. And the[] FBI made the decision from there as to who to interview.” Then-Chairman Grassley said that the FBI “decided” which individuals to contact, that the FBI’s investigation was being conducted “in accordance with the agency’s standard operating procedures,” that “the career public servants and professionals at the FBI know what they’re doing and how best to conduct a background investigation,” and that the FBI’s investigation “should be carried out independent of political or partisan considerations.”

In a word, this is a travesty.

Let me put it more succinctly: What the GOP’s 2018 executive summary does not state—because why would it?—is that the only reason there was no corroboration of the accounts of Ford and Ramirez is because the FBI did not bother to interview any of the numerous available corroborating witnesses—including the victim(!) and alleged assailant(!!). It also omits that the tips from the “tip line” were essentially tossed into the trash. And it fails to mention that the Trump Administration was in total control of the investigation, despite many public assurances to the contrary. Nevertheless, the Republican Senators used the sham investigation as political cover to confirm their boy to a lifetime appointment on the highest court in the land. Hell, Lindsey Graham even threw a hissy fit.

But the willful negligence doesn’t stop with the Senate.

The FBI—run then as now by Christopher Wray, the blue-blood attorney best known for hiding Chris Christie’s cellphone, and who Trump hand-picked to run the Bureau after firing the guy investigating him—did what it could within the limited scope of the investigation, given the short time it was allotted. But, like, if evidence of criminality was found—and if tips had been followed up, and the corroborating witnesses interviewed, that seemed likely—why did the FBI not keep looking on its own, independent of the Senate and the White House? Is there some law prohibiting the Federal Bureau of Investigation from, you know, launching an investigation? The statute of limitations may have run out on the alleged sex crimes, but if the allegations are true—and, again, all signs suggest that they are—Kavanaugh’s insistence under oath that he “never had any sexual or physical encounter of any kind with Dr. Ford,” “never attended a gathering like the one Dr. Ford describes in her allegation,” and never, ever, not even once blacked out from drinking too much, amount to perjury—a serious crime for anyone, but for a potential Supreme Court Justice, absolutely disqualifying.

But the Bureau chose not to follow up. Not only that, but Wray spent the next six years stonewalling Whitehouse’s requests for information on the investigation. (There is an entire section in the report about this.) I remember the Senator complaining about it when I interviewed him on my podcast. That was three years ago!

As for the DOJ, Attorney General Merrick Garland—Kavanaugh’s former boss on the DC Circuit, and thus presumably well aware of Brett’s peccadilloes and predilections—was too busy choking back tears at press conferences and insisting that his Justice Department would “pursue justice without fear or favor” to actually, you know, pursue justice without fear or favor.

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We never did find out who owns Kavanaugh. But the more operative question, perhaps, is this: Why was his installation on the Supreme Court, and his specifically, so necessary? Why this dude, of all people? Why did it have to be him? Wherefore Brett Kavanaugh? Because he don’t seem all that special to me.

There were other options, surely. The Federalist Society and the other Leonard Leo-affiliated outfits have been so relentless in recruiting rightwing assholes to the judiciary that there is not, alas, some great shortage of potential Supreme Court nominees that would please the hateful libertarian billionaires and radical Catholic weirdos who fund said organizations. The lower courts are honeycombed with them. So why go with the ruthlessly partisan beer-swigger with more skeletons in his closet than a Spirit Halloween warehouse on October 15th? Furthermore, are we to believe that Leo and his associates, who invested vast sums in securing the judge’s confirmation, were unaware of Kavanaugh’s sexual assault allegations—allegations, plural, with an “s”? Why risk all of that dirty laundry being aired?

And why did so many powerful people go to such lengths to protect Brett Kavanaugh? The list is long and distinguished: then-president Trump and members of his administration, specifically White House Counsel Don McGahn; the Senate Republicans, particularly Grassley and his staff; the FBI director; the AG; the Leonard Leo cronies—even John Roberts, who took all 83 of the ethics complaints from Kavanaugh’s years as a circuit judge and…well, maybe that’s what’s buried in Ivana’s gravesite.

Remember, after her name leaked in the press, Dr. Ford had to go into hiding to protect herself—this was after her email was hacked. Who was spying on her? Who was threatening her? And why was Kavanaugh’s confirmation worth doing so?

So I ask again: What is it about this guy? Why did it have to be him? Was there really no other jurist in the entire judicial pipeline who could have done the job? Are we to understand that Brett Kavanaugh, of all people, is sui generis?

We have no way of knowing. But we have a right to know.

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Photo credit: President Donald J. Trump and Judge Brett M. Kavanaugh, Oct. 8, 2018, in the East Room of the White House in Washington, D.C. (Official White House Photo by Joyce N. Boghosian.)