Kavanaugh conspiracy? Demands to reopen investigation ignore both facts and the law

It appears Washington has another conspiracy to make this a long, hot summer. Indeed, the conspiracy du jour has all of the favorite elements: a corrupted FBI, a powerful protected person, buried evidence of possible crimes. If it sounds like a Russia investigation redux, think again.

For years, Democrats in Congress defended the FBI over its mishandling of the Russia collusion investigation. Sen. Sheldon Whitehouse (D-R.I.) denounced those alleging a “sham investigation” as “spreading a false narrative” for political purposes.

Now, however, Whitehouse and other Democrats are denouncing the same FBI as having run a “sham” investigation. The disclosure that the FBI received thousands of uninvestigated “tips” against now-Supreme Court Justice Brett Kavanaugh also led columnists to characterize the investigation as anything from “laughable” to “lying” in a confirmation cover-up. And Slate’s Dahlia Lithwick may have set a record for “sham” references (six) in a single short column, declaring that “because the shamming … happened openly, the revelation that it was shamatory feels underwhelming. We have become so inured to all the shamming in plain sight that having it confirmed years later barely even feels like news.”

It may not “feel like news” because the most newsworthy aspect of this controversy is, instead, the renewed — mostly implicit — call to remove Kavanaugh from the Supreme Court. And that’s not even news. It’s nonsense.

The furious allegations of a cover-up began this week with a letter from Assistant FBI Director Jill Tyson to Sens. Whitehouse and Chris Coons (D-Del.). The letter was a delayed response to an earlier inquiry on the investigation of tips given to the FBI during Kavanaugh’s heated confirmation process. To call the letter “delayed” is an understatement by a measure of years. Whitehouse and others are correct in objecting to the fact that these senators asked two years earlier about these tips and any investigation. There is no excuse for failing to respond to members of Congress on such questions, particularly given their oversight responsibilities of the FBI and the Department of Justice (DOJ).

Tyson disclosed that the FBI “received over 4,500 tips, including phone calls and electronic submissions,” after reopening the Kavanaugh investigation following allegations of sexual assault by Christine Blasey Ford. Only a few tips were investigated; instead, the FBI sent them to the Trump White House.

That led to media assertions that FBI Director Christopher Wray may have “lied” when he said the investigation was “by the book.” The problem is, it may well have been by the book — or at least by the memorandum, a memorandum written by the Obama White House.

The DOJ conducts background investigations pursuant to a March 2010 memorandum of understanding (MOU) between the DOJ and the White House. Under the Obama MOU, the FBI promptly notifies the “requesting entity” if it learns of new information before a candidate assumes a nominated position that would raise questions about the “candidate’s suitability or trustworthiness.” Clearly, the FBI can investigate any substantial evidence of a crime. However, the background investigation itself is not a criminal investigation.

Kavanaugh’s first background investigation was completed and disseminated on July 18, 2018, after interviews with 49 individuals over five days. On Sept. 12, 2018, a Democratic senator sent the FBI information regarding allegations of sexual assault. That was almost a week after the confirmation hearing for Kavanaugh had ended. The FBI sent the information to the Trump White House the next day and, on that day, the White House asked the FBI to perform a limited investigation on the new allegations. The FBI spent six days investigating and interviewing 10 more people. It did so, again, not as a criminal investigation but as “an investigative service provider” under the Obama-era MOU’s terms. It also took the unprecedented step of creating a “tip line” to facilitate the process and ultimately sent those tips to the White House, also under the Obama MOU.

For those of us who encouraged further investigation, it already was known that the FBI was swamped with often anonymous “tips” during that heated week. The confirmation process became a ragefest among senators, the press, and the nominee himself. Reporting that the FBI received 4,500 tips is hardly surprising. Indeed, the number seems modest, given the coverage of the tip line and advocacy groups pushing for new allegations. Moreover, given the short extension of the Senate for the “supplemental investigation,” no one could possibly believe the FBI would run down most, let alone all, of the tips. Finally, there is no indication of whether there were credible claims of criminality or wrongdoing in this torrent of tips.

There is a valid concern about the propriety of referring tips to the White House about its own nominee. However, this was the system created under the Obama-era MOU. If someone accused Kavanaugh of rape, prosecutors could have investigated that crime. Indeed, state prosecutors offered to open an investigation if Ford filed a complaint. But this was a background investigation done in an artificially short time frame. The reason for that rush is that either Ford or Democratic senators waited until after the confirmation hearings to make this bombshell disclosure.

Despite the supplemental investigation by the FBI and the exhaustive investigations by the media and advocacy groups, there still is no concrete evidence against Kavanaugh that would support criminal investigation, let alone prosecution. It certainly is possible that one of these tips disclosed clear criminal conduct, but it also would likely mean that the witness never revealed such evidence to the police when it occurred or the Senate during Kavanaugh’s 2006 appellate nomination or before his initial Supreme Court nomination hearings ended.

Of course, Democrats are not the only ones keeping such speculation alive. In a recent interview, former President Trump said of Kavanaugh: “I saved his life. He wouldn’t even be in a law firm. Who would have had him? Nobody. Totally disgraced. Only I saved him. … I saved his life, and I saved his career.”

Calls to impeach Kavanaugh or prosecute him for perjury arose shortly after his confirmation from then-Sen. Kamala Harris (D-Calif.), Sens. Cory Booker (D-N.J.) and Elizabeth Warren (D-Mass.), former Rep. Beto O’Rourke (D-Texas), and others.

It is exceptionally unlikely that Kavanaugh could be charged with perjury — let alone prosecuted — over allegations that likely occurred decades ago. The anti-Kavanaugh activists know that. But that is not their point. Some are surprisingly honest about using this latest controversy to renew efforts to pack the court with a liberal majority. Columnist Joan McCarter noted, for example, that impeachment would take time but that the court can be packed now to rid it of “dangerous ideologues, and a few corrupt ones.” While Kavanaugh is investigated, she said, Democrats should “dilute the Trump/RNC/Koch/Federalist Society’s malign influence and balance it out with four or six or however many additional justices.”

That would do more than “dilute” the court. It would destroy it.

These advocates are trying to create new precedent to reopen confirmation hearings and expose justices to ongoing investigations with shifting majorities in Congress. The fact that many of these critics refer to Kavanaugh’s conservative rulings only emphasizes their raw political motives.

There are legitimate questions to raise about the FBI’s delayed response and even a possible need for new background investigation procedures for nominees. But the Senate declaring open season on a sitting justice would do great harm to both institutions.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.