Kavanaugh conspiracy? Demands to reopen investigation into claims of sexual misconduct ignore both facts and the law
It appears Washington has another conspiracy to make this a long, hot summer.
Indeed, the conspiracy du jour has all of the favorite elements: a corrupted FBI, a powerful protected person, buried evidence of possible crimes. If it sounds like a Russia investigation redux, think again.
For years, Democrats in Congress defended the FBI over its mishandling of the Russia collusion investigation. Sen. Sheldon Whitehouse (D-R.I.) denounced those alleging a “sham investigation” as “spreading a false narrative” for political purposes.
Now, however, Whitehouse and other Democrats are denouncing the same FBI as having run a “sham” investigation. The disclosure that the FBI received thousands of uninvestigated “tips” against now-Supreme Court Justice Brett Kavanaugh also led columnists to characterize the investigation as anything from “laughable” to “lying” in a confirmation cover-up.
And Slate’s Dahlia Lithwick may have set a record for “sham” references (six) in a single short column, declaring that “because the shamming … happened openly, the revelation that it was shamatory feels underwhelming. We have become so inured to all the shamming in plain sight that having it confirmed years later barely even feels like news.”
It may not “feel like news” because the most newsworthy aspect of this controversy is, instead, the renewed — mostly implicit — call to remove Kavanaugh from the Supreme Court.
And that’s not even news. It’s nonsense.
The furious allegations of a cover-up began this week with a letter from Assistant FBI Director Jill Tyson to Sens. Whitehouse and Chris Coons (D-Del.). The letter was a delayed response to an earlier inquiry on the investigation of tips given to the FBI during Kavanaugh’s heated confirmation process. To call the letter “delayed” is an understatement by a measure of years. Whitehouse and others are correct in objecting to the fact that these senators asked two years earlier about these tips and any investigation. 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).
Tyson disclosed that the FBI “received over 4,500 tips, including phone calls and electronic submissions,” after reopening the Kavanaugh investigation following allegations of sexual assault by Christine Blasey Ford. Only a few tips were investigated; instead, the FBI sent them to the Trump White House.
That led to media assertions that FBI Director Christopher Wray may have “lied” when he said the investigation was “by the book.” The problem is, it may well have been by the book — or at least by the memorandum, a memorandum written by the Obama White House.
Kavanaugh’s first background investigation was completed and disseminated on July 18, 2018, after interviews with 49 individuals over five days. On Sept. 12, 2018, a Democratic senator sent the FBI information regarding allegations of sexual assault. That was almost a week after the confirmation hearing for Kavanaugh had ended. The FBI sent the information to the Trump White House the next day and, on that day, the White House asked the FBI to perform a limited investigation on the new allegations. The FBI spent six days investigating and interviewing 10 more people. It did so, again, not as a criminal investigation but as “an investigative service provider” under the Obama-era MOU’s terms. It also took the unprecedented step of creating a “tip line” to facilitate the process and ultimately sent those tips to the White House, also under the Obama MOU.
Calls to impeach Kavanaugh or prosecute him for perjury arose shortly after his confirmation from then-Sen. Kamala Harris (D-Calif.), Sens. Cory Booker (D-N.J.) and Elizabeth Warren (D-Mass.), former Rep. Beto O’Rourke (D-Texas), and others.
It is exceptionally unlikely that Kavanaugh could be charged with perjury — let alone prosecuted — over allegations that likely occurred decades ago. The anti-Kavanaugh activists know that. But that is not their point. Some are surprisingly honest about using this latest controversy to renew efforts to pack the court with a liberal majority. Columnist Joan McCarter noted, for example, that impeachment would take time but that the court can be packed now to rid it of “dangerous ideologues, and a few corrupt ones.” While Kavanaugh is investigated, she said, Democrats should “dilute the Trump/RNC/Koch/Federalist Society’s malign influence and balance it out with four or six or however many additional justices.”