Senate Dems: We want a new probe of Kavanaugh -- and the FBI

By all means, let’s replay 2018 in 2021/22. When Democrats made Brett Kavanaugh their bete noire the first time around, the spectacle became such a circus that it invited all sorts of cranks and miscreants into the ring. Remember that Michael Avenatti attempted to launch his presidential campaign on the basis of Julie Swetnick’s insane allegation that Kavanaugh and his pals ran a rape ring while in high school, allegations that fell apart under the least amount of scrutiny.

Meanwhile, Senate Democrats tried smearing Kavanaugh with every titillating tidbit they could find from his adolescence. That included a lengthy colloquy from Sheldon Whitehouse over the word “boof,” which Kavanaugh said referred to flatulence, while Whitehouse insisted meant sexual activity. (Whitehouse apparently confused it with “boff.”) The stench from that series of events led to a backlash that cost Democrats a Senate majority in the midterms.

For some reason, Whitehouse & Co want a do-over:

Several Democratic senators demanded more answers from the FBI about its handling of Supreme Court Justice Brett M. Kavanaugh’s background investigation three years ago, when decades-old allegations of sexual assault were leveled against President Donald Trump’s nominee to the bench, bitterly dividing lawmakers over his suitability for the lifetime appointment.

Their demands follow the FBI’s acknowledgment that it had received thousands of tips after the allegations surfaced — claims Kavanaugh has vehemently denied — but relayed comparatively few to the Trump White House for further scrutiny.

In a June 30 letter made public Thursday, a senior bureau official, Assistant Director Jill C. Tyson, told Sens. Christopher A. Coons (D-Del.) and Sheldon Whitehouse (D-R.I.) that the agency had responded appropriately by providing the White House Counsel’s Office with the tips it felt were most relevant. Tyson’s letter also explained the limitations investigators felt they faced in carrying out the review.

“The admissions in your 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,” wrote the senators in a reply to FBI Director Christopher A. Wray released Thursday. “If the FBI was not authorized to or did not follow up on any of the tips that it received from the tip line, it is difficult to understand the point of having a tip line at all.”

The normally sensible Ruth Marcus chimes in to deride the FBI’s investigation of Kavanaugh, even while conceding that most of the “tips” were probably nonsense:

The more significant part comes at the end of the letter: “The Security Division section handling the [background investigation] and supplemental background investigation provided all relevant tips to the Office of White House Counsel.”

What were these “relevant tips”? How many were there? How potentially serious? The letter doesn’t say, and we don’t know.

What did then-White House Counsel Donald McGahn do with the “relevant tips?” That, we do know: not a damn thing. McGahn had no interest in discovering what his handpicked nominee had done, or not done. He had every interest in ensuring that Kavanaugh be confirmed, facts be damned. If there was any follow-up within the FBI itself, there’s no indication of that.

And that is the outrage here. The FBI’s investigation into sexual assault allegations against Kavanaugh wasn’t designed to uncover the truth. It was a shoddy enterprise whose mission was to satisfy enough disquieted senators — Republicans Jeff Flake of Arizona, Susan Collins of Maine — to get Kavanaugh across the finish line.

This all arises from a central, false assumption. The FBI did not do an investigation of Brett Kavanaugh, or of sexual assault allegations. It had no jurisdiction nor any rational basis for an investigation of Brett Kavanaugh. The only jurisdiction the FBI had was to conduct a background check of Kavanaugh, requested by the White House with permission from Kavanaugh himself. It’s a security clearance check that would require the FBI to report any potential deleterious information back to the relevant authority requesting the background check, which is never — never — made public by the FBI.

Even without the jurisdictional issues, law enforcement agencies are not supposed to launch investigations targeting people unless they have some reliable evidence that a crime was committed in the first place. The jurisdictional issues add to that hurdle. Tips called in about decades-old parties that people barely remember and have no corroborating testimony of illegal activity — which statutes of limitation make moot anyway — don’t qualify as a reasonable level of suspicion.

The FBI, contra popular belief, is not a national police force. It only has jurisdiction in cases involving potential violations of federal law. Sexual assault of the kind alleged in the Kavanaugh process falls into local and state jurisdictions, and are subject to statutory limitations. The FBI, as Tyson attempted to explain, had no legal authority to pursue tips on anything that didn’t violate federal law. The relevant authority in this case was the White House, which nominated Kavanaugh and requested the background check. If Senate Democrats have a beef with the process, they should take it up with the previous administration.

Perhaps many Americans aren’t familiar with these issues of jurisdiction and authority. That cannot be true of the demagogues in the Senate Democrat caucus who keep pushing the idea that the FBI was tasked to investigate Kavanaugh in terms of criminal activity. Senate Democrats damned well know better than this. They’re deliberately flogging this long-dead horse and lying about the FBI’s role in order to rile up their base.

But … to do what? They can’t remove Kavanaugh; they don’t have the votes, and as it turns out, he’s not the judicial monster they painted in the first place. They can’t pack the court either, because they don’t have the votes for that either. Sheldon “Boof Truther” Whitehouse apparently thinks that voters are prioritizing 2018, rather than the rampant inflation of 2021. It’s pretty clear why Democrats don’t want to talk about 2021, but they’d better not get their hopes up on voters making decisions on the basis of 2018, either.

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