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Opinion The FBI’s ‘investigation’ of Kavanaugh was laughable

Supreme Court nominee Brett M. Kavanaugh during his Senate confirmation hearing on Capitol Hill in September 2018. (Win McNamee/Getty Images)

The most laughable — and most telling — part of the FBI’s recent letter to senators about its investigation of sexual assault allegations against Justice Brett M. Kavanaugh comes at the start: “This responds to your letter, dated August 1, 2019 . . . regarding the supplemental background investigation,” FBI Assistant Director Jill C. Tyson writes to Sens. Sheldon Whitehouse (D-R.I.) and Christopher A. Coons (D-Del.).

Then, impressively deadpan and without elaboration, “We apologize for the extended delay in responding.”

Extended delay — ya think? An extended delay in responding to a senatorial inquiry is two months, not almost two years. Whitehouse and Coons had asked for “the courtesy of a response no later than August 30, 2019.” The date of the actual response? June 30, 2021. It’s no coincidence that it took a new administration — and Whitehouse’s incessant prodding of Biden administration nominees — to finally extract some answers.

The letter, which became public Thursday, offers a perfect illustration of the Trump administration’s disdain for congressional oversight, and the way in which the supposedly professional FBI allowed itself to be cowed — and ultimately tarnished — by subservience to the Trump White House.

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The letter discloses, and some headlines have trumpeted, that the FBI “received over 4,500 tips, including phone calls and electronic submissions,” after reopening the Kavanaugh investigation following the allegations against him by Christine Blasey Ford and Deborah Ramirez. (Kavanaugh’s original Judiciary Committee hearing had ended a few days before the allegations became public.)

Don’t be misled by that seemingly large number. It doesn’t mean there’s any more evidence about Kavanaugh’s conduct today than there was previously. Allegations like those against Kavanaugh produce a lot of calls from a lot of people with time on their hands and perhaps a screw or two loose.

The more significant part comes at the end of the letter: “The Security Division section handling the [background investigation] and supplemental background investigation provided all relevant tips to the Office of White House Counsel.”

What were these “relevant tips”? How many were there? How potentially serious? The letter doesn’t say, and we don’t know.

What did then-White House Counsel Donald McGahn do with the “relevant tips?” That, we do know: not a damn thing. McGahn had no interest in discovering what his handpicked nominee had done, or not done. He had every interest in ensuring that Kavanaugh be confirmed, facts be damned. If there was any follow-up within the FBI itself, there’s no indication of that.

And that is the outrage here. The FBI’s investigation into sexual assault allegations against Kavanaugh wasn’t designed to uncover the truth. It was a shoddy enterprise whose mission was to satisfy enough disquieted senators — Republicans Jeff Flake of Arizona, Susan Collins of Maine — to get Kavanaugh across the finish line.

The FBI’s defense of itself, outlined in the letter, is that it conducts these investigations under protocols established during the Obama administration. In these circumstances, the FBI isn’t conducting a wide-ranging, follow-the-evidence criminal inquiry, but serving a client (in this case, the White House). It is just, you might say, following orders.

As Tyson set out in the letter, “the FBI does not initiate a supplemental background investigation in the absence of instructions from the requesting entity. In addition, the FBI does not have authority . . . to unilaterally conduct further investigative activity absent instructions from the requesting entity.”

This may be an explanation, but it’s not a defense — or it’s a defense that underscores the inadequacy of the current arrangement. The vaunted tip line was, in fact, a funnel to nowhere. It didn’t get information to investigators eager to follow up on it; instead, it was a distraction device, to shunt aside those eager, even desperate, to get what they thought was relevant information to an investigative agency disinclined to do anything with it.

As seven Democratic senators, including Whitehouse, Coons and Judiciary Committee Chairman Richard J. Durbin (Ill.) wrote to FBI Director Christopher A. Wray in a letter Wednesday, “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.” How could the FBI, supposedly the nation’s premier investigative agency, fail to push back at being so hamstrung? How could it let its reputation be used to conceal a whitewash?

As Whitehouse put it during an interview with me, “Now they’ve shown us that a background investigation can be tanked at White House counsel’s request, and they won’t be truthful in real time about White House counsel’s request that it be tanked.”

The Democratic senators ask, among other things, that the FBI provide “all relevant tips” about Kavanaugh it turned over to the White House counsel, which seems like a long shot. Certainly, though, this is an opportunity for the new administration and the FBI to reconsider how background checks are conducted and for the Senate to ensure that the process delivers necessary information to exercise its advise and consent role.

In the frenzied final days of the Kavanaugh confirmation, McGahn kept insisting to Coons that the FBI investigation was being conducted “by the book.” If that is so, this book needs rewriting.

Read more:

Ruth Marcus: At the Supreme Court, a tale of two Bretts

Marc A. Thiessen: Biden gave Christine Blasey Ford the ‘benefit of the doubt.’ Why not Tara Reade?

Henry Olsen: Calls for impeaching Kavanaugh are damaging our democracy

The Post’s View: The FBI investigation into Brett Kavanaugh turns out to be more of a sham than it seemed

Chris Coons: We need the facts on Kavanaugh. Here’s how the FBI can get them.

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