Commotion: Brett Kavanaugh Background Investigation

The scandal allegedly involving 4,500 ignored tips, which included "phone calls and electronic submissions," began back in August 2019, when Senators Whitehouse and Chris Coons asked the FBI to detail its investigation into now Supreme Court Justice Brett Kavanaugh. 

In their July 2021 letter, referenced above, the senators criticized the FBI for its delayed response. They also said that "the admissions in [the FBI's] letter corroborate and explain numerous credible accounts by individuals and firms that they had contacted the FBI with information ‘highly relevant to . . . allegations’ of sexual misconduct by Justice Kavanaugh, only to be ignored." 

They also criticized the FBI for handing over its entire investigation to the Trump White House – the "very office that appears to have constrained the FBI from conducting a thorough investigation."

It took nearly two years for the bureau to respond but the FBI finally did with a letter sent by Assistant Director Jill Tyson. 

In her letter to Whitehouse and others, Tyson detailed the FBI's role in doing a background investigation (BI) on then Judge Kavanagh, pointing out that this wasn't a criminal investigation, but a "purely fact finding" mission. Tyson also states that the FBI does not have the authority to "initiate a supplemental background investigation unless instructed to do so by the requesting entity." In this case, the requesting entity was the Office of White House Counsel. 

In 2018, the FBI "was asked by the Office of White House Counsel to conduct supplemental background investigations, specifically, limited inquiries." As part of that limited initial BI, 49 individuals were interviewed in July of that year.

After two months of public discourse resulting from "the Blasey Ford allegations…[t]he White House requested a supplemental – yet limited – inquiry." Over a six-day period, an additional 10 people, who were not part of the 49, were also interviewed. The FBI didn't not elaborate on why these individuals were interviewed or what relevant information they may have provided. 

According to the June 30 letter sent by Tyson, the tip hotline set up in regards to Kavanaugh's confirmation hearing was the first time something like that had been done. It was "established at the direction of the FBI's Security Division to centralize and manage incoming information related to the nomination." All tips were sent to the Office of White House Counsel. 

Tyson did not detail parameters on how those 4,500 tips were catalogued and evaluated, but said that the FBI followed protocol "established pursuant to a March 2010 memorandum of understanding (MOU) between the Department of Justice and the White House." That MOU was drafted by the Obama White House. 

Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, pointed out in a recent Op-Ed that it might've been difficult for the FBI to investigate several thousand tips – a "modest" number – "given the short extension of the Senate for the “'supplemental investigation.'”

Still, Turley says that, "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)." He also said there was "valid concern about the propriety of referring tips to the White House about its own nominee."

Furthermore, the FBI never interviewed either Ford or Kavanaugh – "two key witnesses." 

For their part, Whitehouse and many others on the left maintain that the BI on Kavanaugh was fake and that more answers are needed. 

In his Op-Ed, Turley said that this may all be posturing; it's not like this will lead to Kavanaugh getting impeached, but legitimate concerns as to how his confirmation and background investigation were handled remain. 

Right now, though, the scandal sounds more like noise and it's "unclear whether the FBI would re-open an investigation into Kavanaugh." But perhaps "the letter could push Garland to force the DOJ to respond to questions about the investigation into Kavanaugh."