The Kavanaugh investigation was a charade

The country just witnessed a charade in the confirmation of Justice Brett Kavanaugh to the US Supreme Court....

Posted: Oct 9, 2018 12:16 PM
Updated: Oct 9, 2018 12:16 PM

The country just witnessed a charade in the confirmation of Justice Brett Kavanaugh to the US Supreme Court.

I'm not talking about the dramatic hearings nor the stream of serious allegations and full-throated defense to rebut them. Instead, I'm referring to efforts by the White House to manipulate the American people into believing the FBI's supplemental background investigation of Kavanaugh was comprehensive in nature and free from outside influence. The administration's convenient, newfound confidence in the FBI was also a sight to behold.

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The remarkable orchestration was successful in two key areas: The puppet masters overseeing the FBI's work were able to convince a large segment of society that the bureau had "free rein" in digging into the judge's past, while also benefiting from the often blurred distinction between an FBI criminal investigation and a background investigation of a White House nominee.

In criminal cases, the bureau has wide latitude to utilize an array of investigative tools in order to ferret out violations of federal law. These investigations are conducted independent of meddling politicians and go wherever the facts lead.

By contrast, in background investigations, the FBI merely acts as the investigative arm of the White House and can only operate within strict parameters set by the administration. The goal is not to gather facts for a criminal case, but instead to collect information the White House can then use to determine whether a potential nominee is suitable for high office.

A problem with the Kavanaugh nomination is the story from elected leaders kept changing. We were first told the FBI was being enlisted to conduct a limited scope review of recent allegations of sexual assault. Then, President Trump insisted the FBI was not being hindered, stating the bureau had "free rein to do whatever they have to do."

Removing the initial guardrails placed on the FBI would have been a welcome development for those who were concerned that a primary issue surrounding Judge Kavanaugh stemmed not only from the serious allegations of sexual assault, but also from the possibility that he lied about his past drinking habits when he testified before the Senate Judiciary Committee. Kavanaugh, without question, has the experience to sit on the nation's highest court, but is he trustworthy?

Unfortunately, Trump's claim that the FBI could do whatever it wanted was untrue. Indeed, reporting from CNN and other outlets indicated the FBI's mandate from the White House was always narrow in scope and did not include the full litany of allegations surfacing from the jurist's past.

To complicate matters, the White House and Senate could not even get their stories straight when asked by journalists about what direction was given to the FBI. Senate Republicans insisted they had not provided the FBI with a specific list of people to interview, but left that up to the bureau. White House Deputy Press Secretary Raj Shah said something totally opposite, indicating the White House had received the names of four people from the Senate.

For its part, the FBI remained in a familiar position -- thrust into the middle of a political storm and attempting to do its work while politicians prepared to spin its eventual findings.

In speaking with former colleagues on the inside, one prevailing frustration centers on how little the public actually understands the difference between a criminal investigation and a background investigation. This misunderstanding is not merely limited to the lay reader -- remarkably, some former law enforcement officials who now comprise the cottage industry of professional partisan prognosticators do not realize just how handcuffed the FBI was in its review of Judge Kavanaugh.

Perhaps the richest aspect of the White House's approach to the FBI in the Kavanaugh affair involved the sheer hypocrisy of it all, considering how this administration has treated the bureau for the past year and a half.

With the Supreme Court nomination, Trump basked in the glory of the FBI and attempted to profit from the bureau's strong brand and stamp of approval. This stands in stark contrast with his endless effort to destroy the FBI's credibility in order to undermine the ongoing investigation into his campaign by special counsel Robert Mueller. Trump's fair-weather friendship with the bureau underscores the destructive nature of politics on law enforcement; he praises the agency when it benefits him and tries to bring it to heel when an area of investigation becomes personally uncomfortable.

Of course, the real proof of the charade will come the next time Mueller pulls out his pen to sign off on a new subpoena involving someone close to Trump. Will the FBI remain the great, unvarnished institution the White House held in high regard in the Kavanaugh affair? Or will it return to the all too familiar role of presidential punching bag?

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