Why Brett Kavanaugh can feel ‘cautiously optimistic’ about the FBI investigation

Posted at 9:35 AM, Oct 01, 2018
and last updated 2018-10-01 17:37:09-04

On Friday, the White House — at the behest of Senate Republicans — ordered a review of the allegations made by Christine Blasey Ford and Deborah Ramirez against Supreme Court nominee Brett Kavanaugh. Since that moment, questions have been raised — primarily by Democrats — about whether the White House is purposely keeping the scope of the investigation narrow so as to ensure nothing comes out that dooms Kavanaugh’s chances at making it to the Supreme Court.

For clarity about what the FBI will do during this planned one-week investigation — and what we should expect to come of it — I reached out to Josh Campbell, a former FBI agent who now works for CNN as part of our justice team. My conversation with Josh, conducted via email and lightly edited for flow, is below.

Cillizza: Let’s start basic: How does the FBI background check work for a Supreme Court nominee? What are the parameters? The limits? The output?

Campbell: The FBI has long served as the investigative arm of the executive branch for nominees to posts like the Supreme Court. The goal is to dig into a nominee’s past in order to gather information the White House can use in determining someone’s suitability for high office. For example, has the person paid his or her taxes? Do they have a criminal history that might be of concern? These are all questions the President would want to know in advance before submitting someone for confirmation.

The role of background investigator is unique for the FBI because these investigations involve gun-and-badge-carrying agents fanning out to gather records and interview character references, but none of the same authorities — subpoenas, search warrants, etc. — typically used in a criminal investigation. Again, the goal is not to gather evidence of a crime, but instead to paint a picture of one’s character and suitability. Once an investigation is complete, the results of the FBI’s findings are provided to the White House, which makes the ultimate determination on a nominee’s future. The current supplemental investigation underway involving Judge Kavanaugh is unique because it stems from allegations that surfaced after the original FBI background investigation was completed and once new allegations came to light. After receiving a request from the Senate to dig further into these revelations, the White House tasked the FBI with conducting a very limited review into the veracity of these claims.

Cillizza: In this follow-up background inquiry, how much ability does the White House have to either broaden or narrow its scope? Can the Senate influence that process at all?

Campbell: As the FBI’s “client” in this matter, the White House sets the parameters on what the Bureau can and cannot investigate. Our reporting indicates the administration has set very tight guardrails on the FBI, along with an arbitrary deadline of one week to wrap it up and submit their findings. The President recently tweeted that the FBI has “free rein” in conducting the supplemental investigation, but that is not consistent with what sources familiar with the investigation have told CNN. Indeed, the scope is very limited in nature and does not include many of the contentious issues surrounding this nominee such as allegations about his overall drinking history or the veracity of his statements to the Senate. For its part, the Senate Judiciary Committee can ask for additional information to be reviewed by the FBI, but that must all be funneled through the White House. Sources tell us the Bureau will not be taking direction from the Senate.

One major issue with the narrow scope and arbitrary time frame for completion involves how agents will handle any new information that comes to light during the course of their interviews. Will the White House permit them to go where the facts lead them, or will the administration work to ensure the FBI only goes so far as their original limited mandate? This is a pivotal question for which we do not yet have a sufficient answer. We reported over the weekend that one of the witnesses — Ms. Ramirez — has provided investigators with the names of additional witnesses. If the White House prohibits the Bureau from talking to these people, the legitimacy of the entire endeavor will be called into question.

Cillizza: What sort of resources might the Bureau put up for this sort of request for further background information? And is it reasonable for the FBI to effectively complete this sort of investigation within a week?

Campbell: With 13,000 special agents and thousands of analysts and other experts, there is no question the FBI has the resources to conduct a robust review. The problem instead lies in what the White House will actually permit the Bureau to investigate. With its extremely limited scope, I fear this is more of a check-the-box exercise for the White House rather than a desire for a fulsome investigation of Judge Kavanaugh’s past. There is no other way to explain why they are dictating these limited terms and handcuffing the Bureau’s ability to do what we expect of them. They are seeking to place the FBI’s “good housekeeping stamp of approval” on an investigation that, by its very nature, is narrow and does not include many of the serious questions that have since come to light.

Cillizza: How will the FBI’s findings in this investigation be presented — and to whom?

Campbell: As the client, the White House will ultimately be presented with the results of the FBI’s background investigation. Special agents will document their interviews in testimonial documents that will simply include what witnesses told investigators. The reports will not include opinions from the agents doing the interviewing nor any summarized conclusions.

One lingering question is whether the White House will permit the results of the FBI investigation to be made public. This has clearly been a contentious confirmation process with extreme public interest. Will the Trump administration opt for transparency and show the American people what the Bureau found, or will they shield the findings from public view?

Cillizza: Finish this sentence: “Brett Kavanaugh should feel ___________ about this FBI investigation.” Now, explain.

Campbell: “Cautiously optimistic.”

I say “cautiously optimistic” because this investigation is not a deep dive into all of the recent serious allegations surrounding the judge’s past. As with all subjects of FBI investigation, there remains a presumption of innocence absent some enlightening revelation. So long as the White House keeps the FBI on a tight leash and limited only to a very narrow focus, the findings are likely to only result in a he-said/she-said involving Ms. Ford’s allegations of sexual assault. Absent hard evidence that corroborates these allegations, the Senate and the American people will have to judge for themselves who they believe.

That said, if new information does indeed come to light and the FBI’s mandate is ultimately expanded, we will be dealing with an entirely different situation. Should the judge’s history with alcohol or the truthfulness of his claims to the Senate become part of this review, his optimism will almost certainly begin to fade.