More than 10 days after Dr. Christine Blasey Ford’s lawyers called for an FBI investigation into her sexual assault claims — and after a dramatic scene in the Senate Judiciary Committee hearing — Senate Republicans finally agreed that a supplemental FBI investigation into Judge Brett Kavanaugh’s background should commence immediately, lasting no more than one week. Now, amid reports that the FBI may very well be concluding its reinvestigation, we are left wondering what value the report will have. The likely answer: far less than expected.
Despite President Trump’s tweet declaring the FBI can interview “whoever they deem appropriate, at their discretion,” the White House Counsel’s Office initially imposed restrictions on which claims could be investigated, going so far as to dictate the (very short) witness list. They then told the FBI to talk to whomever they needed, but only in response to intense criticism. But the White House never should have micromanaged this process to begin with; instead they should have gotten out of the way and let the FBI do their job. Their yo-yo instructions hindered the FBI from the outset, effectively guaranteeing that this process would be far less useful than what Sens. Jeff Flake (R-Ariz.), Lisa Murkowski (R-Alaska), Susan Collins (R-Maine), and Chris Coons (D-Del.) envisioned.
{mosads}It’s not unusual for the White House to ask for a limited reinvestigation. I know because I ran the vetting team in the White House Counsel’s Office from 2014 until the end of the Obama administration. I regularly authorized the FBI to go back out on a discrete issue — in fact, more often than not, we asked the FBI to reinvestigate before the Senate even requested it. Why? Because people being put into positions of public trust — such as that of a lifetime Supreme Court appointment — need to be thoroughly vetted. Our guiding principle in the Obama administration was that more information was better than less.
For example, let’s say that during the course of a background investigation a couple of people told the FBI that the would-be nominee had an anger issue or a drinking problem. When we saw something such as this in a background investigation report, we wanted more information. We wouldn’t have waited for the Senate to ask because we would have initiated the FBI reinvestigation ourselves, and decided whether to nominate that individual on the basis of the findings. In the case of this fictional nominee, we would have directed the FBI to go out on the specific topic we wanted more information about (i.e., can you go out and ask the nominee’s former colleagues whether she had a drinking problem?), but we never would have given the FBI a list of names and told them they couldn’t talk to anyone else. And certainly, if the FBI ever said they recommended talking to more people, we would have deferred to them.
Simply put, we would let the FBI do their job. Sure, they would get irritated at how quickly we moved them, but we never interfered with their investigative work.
Everyone working in career and political positions in government goes through background investigations — from entry-level staffers in the Department of Agriculture to Supreme Court nominees. But there is not a single position that receives more scrutiny than a potential Supreme Court justice. In the four-plus years I did vetting at the White House — which includes the time I was on the team and the time I ran the team — I was involved in the vetting for secretary of State, two secretaries of Defense, attorney general, president of the World Bank, secretary of Treasury, and many, many more. But in all my years of vetting, there was only one nomination on which every single person on the team worked; one nomination that caused me to see the sun rise over the White House while working 32 hours straight; one nomination that forced me to temporarily give my dog to friends because I no longer could care for him: the Supreme Court.
The Supreme Court is a vacancy unlike any other that the White House handles: it is a lifetime appointment to the highest court in the land. It receives the highest level of scrutiny because it deserves such. So, for the White House to short-circuit the vetting process for this position, of all positions, demonstrates not only a disregard for the seriousness of this position, but an abandonment of the process followed by many administrations, Republican and Democratic. It also betrays a fundamental misunderstanding of just how critical it is that the American people have confidence in those who will serve on the Supreme Court and make decisions about our most fundamental rights.
From the White House Counsel’s Office perspective, in a politically-fraught situation, one week may seem like a long time. But one week is nothing compared to a lifetime appointment to the Supreme Court.
Sarah Baker is executive director of We The Action, a nonprofit organization that connects lawyers with causes. She worked at the White House from 2011 to 2017, serving as special assistant and associate counsel to President Obama, and as senior policy director to Dr. Jill Biden.