The White House could order the FBI to investigate the sexual assault allegation against Supreme Court nominee Brett Kavanaugh, several former senior White House and Justice Department officials from both parties said Wednesday, contradicting President Donald Trump’s claims that doing so would exceed the FBI’s mandate.
Trump continued to insist on Wednesday that there is no potential role for the FBI in exploring claims by California psychology professor Christine Blasey Ford that Kavanaugh covered her mouth while trying to strip her bathing suit off during a party when both were in high school in the 1980s.
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“It would seem that the FBI really doesn’t do that,” the president said in response to a reporter’s question about Ford’s call for the FBI to look into the matter before she agrees to testify at a Senate hearing. “They’ve investigated about six times before, and it seems that they don’t do that.”
Trump’s stance echoed that of Senate Republican leaders, who suggested there is no role for the FBI in investigating a decades-old incident that would not be a federal crime.
“We have no power to commandeer an Executive Branch agency into conducting our due diligence. The job of assessing and investigating a nominee’s qualifications in order to decide whether to consent to the nomination is ours, and ours alone,” Senate Judiciary Committee Chairman Chuck Grassley said in a letter Wednesday to Ford’s lawyers.
Longtime Senate Judiciary Committee member Orrin Hatch (R-Utah) agreed. “The FBI does not do investigations like this. The responsibility falls to us,” Hatch said.
But several officials who have had direct roles in the nomination and background check process said it’s common, as part of the FBI’s vetting of presidential nominees for judicial posts and executive branch jobs, to investigate matters that do not qualify as federal crimes. Some noted that the Trump White House itself enlisted the FBI last winter to explore spousal abuse claims against former White House Staff Secretary Rob Porter.
“What happened here is actually not unusual,” said John Yoo, a senior Justice Department official under President George W. Bush.
“The Judiciary Committee will often say to the Justice Department: ‘Can you send the agents back out and find out if this is true, find out what happened with this? … The normal procedure for this would have been to send the FBI out,” Yoo added.
A former Obama administration lawyer also said the FBI would look into the matter if the White House relayed such a request.
“If the FBI was asked to do it, it would do it,” said the attorney, who asked not to be named. “It doesn’t have to be a federal crime. They’ve investigating someone’s suitability for the position. … It has nothing to do with it being a federal crime.”
In a letter to Democrats Wednesday afternoon, Grassley offered a somewhat different argument, however, saying that FBI involvement was not appropriate given that Ford’s allegations had now gone public.
“Confidentiality permits people to speak freely and candidly about the character and qualifications of the nominee,” Grassley wrote. “The White House requires the Senate to keep Background investigation files private so that people can speak anonymously to investigators if they so desire. Because Dr. Ford’s allegations are in the public arena, there is no longer a need for a confidential FBI investigation.”
Such an investigation did take place when Anita Hill came forward with sexual harassment allegations against Supreme Court Clarence Thomas in 1991 and was quickly completed. But Grassley stressed that the probe took place before those claims went public. The Iowa Republican acknowledges that one of those FBI reports was leaked before the follow-up hearing in which Hill told her story and Thomas rejected it.
Some officials said the Trump administration’s response to the alleged battery by Porter provides ample evidence of the FBI’s willingness to conduct follow-up inquiries, even where no federal crime is alleged. In that case, White House officials asked for more information about the initial claims, and the FBI was tasked with conducting another round of interviews aimed at developing more information on what transpired.
In a letter sent to Congress in April, FBI Assistant Director Gerald Roberts said that after Porter’s full background check was sent to the White House in July 2017, officials there came back to the FBI to request “additional information, to include but not limited to, re-interviews of Mr. Porter, his ex-wives and his girlfriend at the time.”
In urgent cases, such re-investigations can be handled by the FBI quite quickly, former officials said.
“It seems to me you could have this done in a day or two, actually,” Yoo said during a question-and-answer session at a Wednesday event sponsored by the Washington Legal Foundation. “I actually was surprised … that the committee decided to just have hearings on Monday to hear from both Kavanaugh and Dr. Ford without the benefit of additional information.”
Sarah Baker, a lawyer in the White House counsel’s office lawyer under President Barack Obama, echoed that position.
“This is really easy to do. This is a quick process. I don’t think it needs to take more than a couple of days,” Baker told reporters Wednesday on a conference call organized by Senate Democrats. “The only reason you don’t ask is if you don’t want the answer.”
One staffer said background investigations are often reopened for questions unrelated to any crime, such as concerns about a nominee’s academic credentials.
Yoo did not completely side with Democrats, whom he accused of trying to drag out the process in order to delay Kavanaugh’s confirmation. However, the former White House official — perhaps best known for his Bush-era legal memos authorizing torture — said he thought it was still possible that Republicans could get another nominee onto the court this year even if Kavanaugh should withdraw.
Former officials said such background investigation reports are typically handled as highly sensitive, with reports usually hand-delivered to the White House counsel in a sealed envelope.
“It’s not something that’s supposed to be widely shared around,” one attorney familiar with the process said.
Experts on background checks said it would be unusual for the FBI to investigate a 36-year-old allegation, particularly one that involved individuals who were in high school at the time.
But Democrats noted that Grassley has insisted on far-reaching disclosure about judicial nominees’ drug use. As a ranking minority member and as chairman of the Judiciary Committee, Grassley insisted that judicial nominees’ drug history back to age 18 was relevant and often disqualifying. (Standard applications for national security jobs ask only about drug use in the past seven years and high-level executive branch employees were asked about drug use over the past decade.)
“His rule was for any judicial nominee, any drug use other than marijuana since age 18 and they’re out,” said one Obama administration attorney involved in the process, speaking on condition of anonymity. “We had to pull people … Any post-bar drug use at all and you were out.”
One security clearance lawyer also reported that his client, a White House appointee, was questioned about drug use at age 16.
Grassley relaxed his policy on nominee drug use last November. He said Republicans and Democrats had agreed that “one to two uses” after a nominee became an attorney would no longer be disqualifying.
“Over time, there’s been an evolving attitude in our society toward marijuana. … I’ve had this absolute prohibition attitude that I’ve demonstrated, maybe not in public but in private,” Grassley said. “If that’s the sole judgment of whether somebody ought to have a judgeship or not or maybe any other position, we may not be able to find people to fill those positions.”
The Judiciary chairman said one of his concerns was that if the panel stuck by a stricter policy, nominees might just lie about their drug use when questioned by the FBI.
“Maybe the word gets around that you better lie about it or you ain’t going to get a judgeship. That’s kind of worried me a lot,” he said. “I think we ought to have a consistent policy.”