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Why Urgent Improvement is Needed in the FBI Investigation Process

The FBI had already initiated a background investigation of Donald Trump’s Supreme Court nominee, Brett Kavanaugh, before the White House announcement in July.

That is standard practice for all nominations.

This was the sixth time that Brett Kavanaugh received a background check by the FBI during his time in Washington, DC legal and political circles.

During Judge Kavanaugh’s time in the George W. Bush White House he first served in the White House Counsel’s Office – where he was privy to very sensitive information. Accusations of high school drinking would have raised “red flags”. They would have pointed to the potential for misbehavior involving alcohol in the high pressure world of the White House.

Later, as Staff Secretary to President George W. Bush, Brett Kavanaugh would have needed a “special access” security clearance. That clearance would have probably gone further back than the normal 10 years to at least 15 years – certainly to his time as an undergraduate at Yale College.

It is inconceivable to me that trained FBI Agents did not look for evidence of excessive drinking and other inappropriate prior behavior that could, potentially, be used by a hostile power to blackmail him.

As Federal Appeals Court Judge, he was similarly investigated by the FBI before confirmation.

Don’t Underestimate In-depth FBI Background Investigations

Background investigations for positions in the federal judiciary are reputed to be “exhaustive”. Chris Christie (US Attorney for District of New Jersey/Bush’43) and Patrick Gaspard (White House aide to Barack Obama) agreed during an appearance on ABC This Week that their FBI background investigations had been “exhaustive.”

“Exhaustive” doesn’t mean “boxers or briefs” but does imply these men felt there had been thorough and penetrating examination of their personal and professional pasts to determine if anything would subsequently embarrass them, embarrass the administration they served or provide any opportunity for an actor for a foreign power to compromise, blackmail or otherwise prevent the nominee from doing their primary job — “uphold the Constitution” and the laws of the United States.

FBI and other law enforcement background checks do not restrict their interviews to just the references the nominee puts down on their application. They go looking for dirt! They walk streets, talk to random neighbors, to the neighbors of the applicants parents – if necessary.

They talk to co-workers, spouses, people known to be friends and those not so friendly to the nominee.

Still the recent allegations against Judge Brett Kavanaugh raise questions about flaws in the background process.

Did the Security Checks Fall Short on Kavanaugh’s Alleged History?

Brett Kavanaugh’s Supreme Court clerkship began in the fall of 1993 – following a clerkship with the 9th Circuit Court of Appeals.

FBI background examinations that involve both suitability and national security go back 5 to 10 years, depending on the position. Longer for Special Access National Security Clearances.

Kavanaugh graduated from Yale College in 1987 and Yale Law School in 1990. His college and law school records fall within that period and should have been examined.

The FBI should have interviewed college and law school teachers and friends.

Suitability and national security checks include asking questions about alcohol and sexual abuse.

It is inconceivable that Justice Anthony Kennedy would have hired Brett Kavanaugh as a Supreme Court clerk if the FBI had uncovered evidence or innuendo of heavy drinking or inappropriate sexual conduct reported during an FBI background check of his time at Yale College or Yale Law School.

It is, also, inconceivable that Ken Starr – who was investigating the potential impeachment of the President of the United States in 1998 – would have appointed a prosecutor who had a college history of alcohol abuse.

It is beyond the realm of the possible that George W. Bush would have promoted Kavanaugh to the incredibly sensitive position of a wartime staff secretary if he had any indication that Brett Kavanaugh had a problem with alcohol, self-control, or inappropriate conduct toward women.

The history of Kavanaugh’s successively more responsible positions in the federal government raises some serious questions about the rigor and thoroughness of the FBI background process.

FBI Should Heed This Missed Opportunity

The Kavanaugh case is not exceptional. This is the vetting process followed for all members of the President’s Cabinet, National Security Council, Council of Economic Advisers, hundreds of bureaucrats in the alphabet soup of federal agencies plus the State Department’s global operations, the CIA, and the FBI!

Whether the sexual allegations against Brett Kavanaugh this week prove to be true or not, significant negative information was missed once, twice, thrice, four, five, or six times in his background investigations.

There is a history of serious underage drinking according to his own Senate testimony.

The FBI is not incompetent. It can detect a pattern of bad behavior when it is presented, so let’s use the Kavanaugh case as an opportunity to improve their background investigation processes.

  • Background checks for successively more responsible positions should be cumulative rather than discrete. Each background investigation should overlap with the prior report and each should build on the nominees cumulative history.
    • The Senate should have had a package of all six of Brett Kavanaugh’s FBI background investigations.
  • Standards of acceptable behavior must be set. For example, should too much beer consumption in college serve as an obstacle to Senate confirmation or government service?
    • Is the question always asked – in every background investigation?
    • What is the measure of excessive drinking deemed credible to be included in the background package and carried forward into subsequent reports?
    • Should indications of excessive drinking trigger further investigation beyond the 10 years under investigation?
  • In the wake of the #metoo movement a complete sexual history must be a part of every background check for nominees to senior and powerful positions. That history must be maintained in the nominees cumulative background.
    • What level of evidence is required to deem a subsequent allegation “credible”?
  • Any information that comes to a member of the US Senate or the US House of Representatives or the White House or an alphabet agency that reflects on a current nominee must be immediately forwarded to the FBI to be investigated and included in the cumulative background investigation package.

Learning and Healing from a Sad Episode

In the end, I find it difficult to imagine that Brett Kavanaugh will end up on the US Supreme Court. That does not mean I believe he is a serial rapist as is being alleged.

A seventh FBI investigation will not satisfy the partisans on each side of the aisle – but it should be done.

It might give an otherwise seemingly exemplary man at least some of his reputation and his career back.

The human tragedy for two families this week underscores the FBI’s responsibility to do a more thorough job in a new era.

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