by WorldTribune Staff, October 2, 2018
The opponents of Supreme Court nominee Brett Kavanaugh want the FBI to engage in “an open-ended fishing expedition that, probably by design, would go on much longer than a week,” a pair of former Department of Justice officials said.
“They are insisting that the FBI investigate Judge Kavanaugh’s drinking while in high school and college and interview anyone who might know about it. Two such people have already come forward, and there are no disincentives for new claimants, possibly driven by partisan or personal animus, to emerge,” David B. Rivkin Jr. and Kristi Remington wrote for the Wall Street Journal on Oct. 1.
Rivkin, who practices appellate and constitutional law in Washington, served in the DOJ and the White House Counsel’s Office during the Reagan and George H.W. Bush administrations. Remington served in the DOJ during George W. Bush administration and was responsible for overseeing the judicial nomination and confirmation process, including for Chief Justice John Roberts and Justice Samuel Alito.
Soon after the FBI investigation into accusations against Kavanaugh was announced, Democrats “were challenging its credibility, objecting to its scope and focus, and lamenting that the White House had any involvement in shaping the process,” Rivkin and Remington wrote.
The writers note that the reopened investigation potentially entailed interviewing Deborah Ramirez, who claims that Kavanaugh committed lewd conduct while a freshmen at Yale, and the three purported witnesses named by Christine Blasey Ford – Mark Judge, P.J. Smyth and Leland Keyser – “all of whom have attested they have no memory that would corroborate her accusation.”
Julie Swetnick’s “sordid and implausible claims were to be left out, and if any new allegations against Judge Kavanaugh were to emerge, these also wouldn’t be investigated.”
Rivkin and Remington also noted that Sen. Patrick Leahy, Vermont Democrat, “tried to justify his demand to broaden the FBI investigation by claiming that heavy drinking was ‘directly relevant’ to the sexual-assault allegations. If this approach were adopted, the FBI would have to interview a very large pool of witnesses about Judge Kavanaugh’s alcohol intake, and possibly many other personal traits, over many years. Never mind that alcohol use is a standard FBI question, certainly asked in the course of Judge Kavanaugh’s previous six background investigations.”
Some of the Left’s demands seem quite absurd, Rivkin and Remington note, citing as an example an article by Brian Fallon, who worked as press secretary for Hillary Clinton’s 2016 campaign, in Politico, in which Fallon wrote: “For its investigation to be comprehensive, the FBI must also get to the bottom of what ‘boofing’ means.”
That’s a reference to a joke in Kavanaugh’s high-school yearbook entry. As Fallon notes, ‘Kavanaugh said it referred to ‘flatulence.’ ”
The entire debate “is complicated by confusion about what the FBI does in a background investigation,” Rivkin and Remington wrote. “Even former Director James Comey is mixed up. He penned a vastly misleading New York Times op-ed Sunday, in which he seemed to conflate background checks with criminal probes.”
Comey wrote: “It is one thing to have your lawyer submit a statement on your behalf. It is a very different thing to sit across from two FBI special agents and answer their relentless questions.”
The FBI, Rivkin and Remington note, “is primarily a law-enforcement agency. Its criminal investigations are often wide-ranging, can be potentially expanded into new areas, and have no preset time limits. … FBI background investigations are a fundamentally different affair. They are not based on any explicit statutory authorization but are founded on regulations authorizing investigations of persons who seek federal government employment.”
Rivkin and Remington conclude that “Running a background investigation as if it were a criminal one would destroy the FBI’s ability to conduct the former. It would cause many Americans to refuse to cooperate. It would cause the bureau to exceed its constitutionally proper remit. And having the FBI proffer credibility determinations in the context of a judicial appointment would politicize the bureau – and, as then-Sen. Joe Biden correctly asserted during Justice Clarence Thomas’s 1991 confirmation hearings, it would usurp a function that properly belongs to the president and the Senate.
“The demands by anti-Kavanaugh Democrats are blatantly partisan and unfair. What they seek has never been done with any judicial nominee in American history. They also run afoul of important legal and practical realities of FBI-conducted background investigations. If countenanced, they would politicize the FBI and destroy the judicial confirmation process.”