Taking Stock of the FBI’s Role in Senate Confirmations after Kavanaugh

I previously wrote that at least some of Judge Kavanaugh’s confirmation challenges are symptomatic of the White House’s general disdain of the vetting process. That may seem moot now that he is confirmed and sits on the Supreme Court, but it has revealed a major fault line in the current confirmation process.

The White House’s disinterest in finding the truth about its nominees is contaminating and undermining the Senate’s ability to properly provide “advice and consent” on the president’s nominees.

As more people are recognizing, when it comes to background investigations for presidential nominees, the FBI operates in a subordinate position to the White House. While some say the White House is a client to the FBI, make no mistake: this White House believes it sits firmly atop the FBI, with President Trump asserting an “absolute right” to control the Justice Department. It comes at no surprise that the White House is reported to have kept a firm grip on the narrow supplemental investigation into Kavanaugh.

This relationship has obviously created conflict, as we’ve seen with the president’s public attacks on FBI personnel and improper interference in the agency’s investigation into Russian meddling in the 2016 election. Background investigations ordered by the president for his own nominees, where investigators’ precise movements are apparently dictated by the White House, may exacerbate tensions.

Typically, as my colleague and former FBI agent Michael German has explained, special agents operate under the provisions and guidance of the Attorney General’s Guidelines for Domestic FBI Operations (AGG-Dom) and the Domestic Investigations and Operations Guide (DIOG). When investigations relate to federal crimes, national security threats, or intelligence collection, analysis and planning, the guidelines provide agents with the discretion to, among other things, follow leads where appropriate and accept voluntary information and evidence from the public.

Yet, the guidelines specifically do not govern the FBI’s background investigations (see DIOG 2.9), which require subjects’ consent. One would assume the FBI would have broader discretion when it comes to these investigations. But the FBI’s Special Inquiry and General Background Investigations Unit (SIGBIU), which coordinates background investigations on presidential nominees, conducts its work on these investigations pursuant to a memorandum of understanding with the White House Counsel’s Office (this was true in prior administrations, and I presume one is still in place today). SIGBIU initiates initial and supplemental investigations at the request of the White House under the operating procedures outlined in the MOU. The White House may define the scope of the investigation under its terms (though in my experience authorizing and reviewing hundreds of background investigations for presidential nominees, it is not normal for these investigations to be micromanaged by the White House counsel’s office).

The procedures outlined in the MOU, and the general process for investigating candidates forpresidential nominations, assume the president has a good faith interest in identifying derogatory information about his nominees. In the Kavanaugh confirmation process, we witnessed what happens when a president simply isn’t interested in identifying the truth about credible allegations: The White House may decide not to request a supplemental investigation, despite identified omissions or errors in the FBI’s initial report. If they do request follow-up, they might decide to impose arbitrary and unreasonable deadlines on SIGBIU. Because SIGBIU has a strong incentive to be responsive to the White House’s requests, lest a call is made from the White House to the FBI’s front office to voice displeasure about the background investigations team, such conditions may prevent a thorough and complete investigation of a candidate.

One might ask, in Kavanaugh’s case, why can’t the FBI invoke its other authorities to investigate the perjury allegations against Kavanaugh, a sitting federal judge, regardless of whether the White House requests it? Perhaps they could, but they wouldn’t need to complete such a probe prior to submitting the background investigation file to the White House. In my experience, the FBI would merely note the fact of that ongoing investigation in the file. (Based on the limited comments from senators who reviewed the files, it’s unclear to me whether such a notation appears in the file).

The dynamic between the White House and FBI isn’t necessarily problematic when you have a White House and a president who respect the FBI investigatory process and care about the results. When I served in the White House, liaising with SIGBIU, I believe our relationship with the FBI was generally effective because we (including President Obama) sought to get to the bottom of any derogatory information pertaining to our prospective nominees. But when you have a president who simply doesn’t care, then the relationship can be co-opted for political expediency.

With the Senate unable to direct the FBI to conduct background investigations into the president’s nominees, senators must depend on the White House appropriately instructing the FBI. Unfortunately, even in normal circumstances, many senators who review background investigation files on nominees (and I say this with all due respect) generally don’t understand the precise scope and limitations of the investigations.

Having privately briefed senators one-on-one on the contents of background investigation files, I believe that many senators relied on these files perhaps more than they should have in their assessment of nominees. For example, if you took a survey of senators, I believe you would get varied responses if you asked them whether they believe a typical background investigation on a presidential nominee covers drug or alcohol use when the nominee was in college (generally it does not, unless associated with a charge or conviction, or the candidate sought counseling or treatment in connection with their use). Or allegations of sexual harassment or assault during the nominee’s adult life (generally it does not, unless associated with a charge or conviction). Or whether the nominee has settled any sexual harassment or discrimination complaints levied against them (it depends on when and in what forum a complaint was filed).

Much of the nominations and confirmations process is dictated by long-standing precedents, expectations, and memoranda of understanding. The Judiciary Committee, for example, has its own separate MOU with the White House that lays out how background investigations will be shared and reviewed by the committee. Unfortunately, these “gentlemen’s agreements” don’t carry the force of law. That the nominee will be fully and properly vetted by the White House is not a given.

The circumstances surrounding the FBI’s supplemental investigation into Kavanaugh confirms that the Senate can no longer take for granted that the FBI’s background investigations process, operating under the direction of the White House, seeks to cover all the information that senators believe they need to properly assess a president’s nominee.

It’s a sad truth that full and complete background investigations on nominees, like so much else, depend on the president requesting them. When the president doesn’t care about—or worse, wants to conceal—derogatory information about the nominee, it would take a principled Senate to compel him to follow the example of those that preceded him. There’s not much that a disaffected public can do. Here, Senator Jeff Flake briefly forced further investigation, but then wavered as the White House sandbagged the additional FBI investigative activity. The Senate does have other tools it could employ to compel testimony and documents pertaining to allegations against nominees, namely subpoenas or leveraged inaction on the nominee. What we need, then, is a Senate willing to wield them.

Photo: Senators reviewed the supplemental FBI report on Brett Kavanaugh in the Office of Senate Security,at the U.S. Capitol, pictured here October 3, 2018. Photo by Drew Angerer/Getty Images.

 

About the Author(s)

Rudy Mehrbani

Rudy Mehrbani is Spitzer Fellow and Senior Counsel at the Brennan Center for Justice. He managed presidential nominee vetting and confirmations in the Obama White House as Assistant to the President and Director of the Presidential Personnel Office, and previously, as Associate Counsel to the President in the White House Counsel’s Office. Follow him on Twitter @RudyMehrbani.