This Is No ‘Standard’ FBI Background Investigation

To say that a lot is riding on this investigation would be an understatement. The Republicans’ narrow majority in the Senate means that Republicans Jeff Flake, Lisa Murkowski, and Susan Collins, who are on the fence about Kavanaugh, could sink his nomination with a “no” vote. And all three have said they will wait to read the FBI’s findings before they make a final decision. But who is actually doing the investigating? And why are they conducting a so-called “standard” background investigation for a high-level nominee who has been accused of sexual assault?

Four former FBI officials told me that, while background investigations are typically assigned to the newest special agents in a particular FBI field office, the Kavanaugh investigation is undoubtedly an “all hands on deck” moment. Newer agents are not necessarily confined to low-profile probes, says Frank Figliuzzi, a former FBI assistant director for counterintelligence, who recalls doing a background investigation “as a brand-new agent” for “a very high-level White House appointment.” But the Kavanaugh investigation is in a league of its own. “I don’t think there’s a first-office agent anywhere within spitting distance of this,” James Gagliano, a retired FBI supervisory special agent, told me, referring to newbie agents. “Because this is likely a special inquiry, senior officials are going to handpick agents” from the Washington and Baltimore field offices, which have jurisdiction over the areas where the alleged incidents occurred, Gagliano says. One former FBI agent, Manny Gomez, emphasizes that when it comes to FBI background investigations, “it doesn’t get more high-profile than this,” adding that he would expect senior agents to have been dispatched to conduct the relevant interviews. 

Figliuzzi agrees. “This isn’t for the rookies,” he says. “Whoever the best interviewers and fact finders are, they’ll be pulled” from their ordinary roles and placed on the Kavanaugh investigation. In the Kavanaugh case, the bureau’s security division is “running the show, likely with lots of input from the ‘seventh floor’—the director’s office,” Frank Montoya Jr., a former FBI special agent who led the Seattle field office until 2016, told me. Says Figliuzzi: “It will go right up to [Deputy FBI Director] David Bowdich, who’s got to be all over this and briefing FBI Director [Christopher] Wray three times per day.” The FBI will ultimately report its findings to the White House and the Senate.

As of Monday afternoon, the FBI had interviewed three potential witnesses—Mark Judge, Patrick J. Smyth, and Leland Keyser—to the allegations made by Christine Blasey Ford, a professor who testified last week that Kavanaugh had assaulted her at a high-school party in 1982,  according to The Washington Post.Agents also interviewed Deborah Ramirez, a former classmate of Kavanaugh’s who alleged that he exposed himself to her when they were undergraduates at Yale.

The investigation is a far cry from the cross-examination Ford was subjected to last week by a sex-crimes prosecutor hired by Senate Judiciary Committee Republicans. (The prosecutor, Rachel Mitchell, appeared to still be working for the Republicans as of Monday, according to a committee source, and continues to have a committee email address.) But the FBI’s background investigation was still extremely limited at the outset, according to reports published over the weekend, and the White House was pressured to expand its scope on Monday.

Trump insisted that he never ordered the FBI to restrict the probe in the first place, but the primary liaison between the bureau and the White House has been White House Counsel Don McGahn. McGahn has been shepherding Kavanaugh through the confirmation process and reportedly told Democratic Senator Chris Coons this week that the background investigation was being done “by the book.” That does not mean it is appropriately comprehensive, however—Figliuzzi cautioned against putting any weight in claims that this is a “standard” investigation, since standard background probes are typically conducted before any derogatory information has been presented about the person being investigated.

Coons told the Post that he “came away from” his conversation with McGahn realizing that agents would not be expanding their investigation to include witnesses they learn about in the course of their initial interviews who might be able to corroborate specific claims. A lawyer for Debbie Ramirez, John Clune, echoed that concern on Tuesday, writing in a series of tweets that “we are not aware of the FBI affirmatively reaching out to any” of the more than 20 witnesses Ramirez identified in her interview who may have corroborating information. “Though we appreciated the agents who responded on Sunday, we have great concern that the FBI is not conducting—or not being permitted to conduct—a serious investigation,” he tweeted.

Figliuzzi, who says he remains in touch with current agents, says his understanding is that the bureau was recently given permission “to do logical follow-up interview leads” related to the “sex-assault allegations that are current and credible.” (A senior administration official told the Post that the bureau would be allowed, as of Monday, to probe allegations made by another Kavanaugh accuser, Julie Swetnick.) But the probe has not been expanded to include a deeper examination of Kavanaugh’s drinking habits and whether he perjured himself before Congress, and agents don’t have the freedom to pursue leads on their own.

“I sense a degree of frustration inside” the bureau “with the public’s expectation that the FBI is conducting a full-court press when they’re not being permitted to do so,” Figliuzzi says. There is also “increasing concern that the White House and Senate will use the FBI as an excuse to say, ‘This has been fully investigated,’” when it actually hasn’t been. It is not conceivable, moreover, that the bureau has decided to ignore walk-ins and calls made to tip lines, Figliuzzi says. (The New Yorker reported recently that people purporting to have information about Kavanaugh were having difficulty communicating with agents.) But, he added, “the White House is still tightly controlling this investigation” in a way that may preclude agents from pursuing tips.

Montoya also says that he has “a hard time believing anyone was ignored. That’s not how it works. Everyone is heard.” Inside the FBI, “there has been a lot of confusion about how far to take this case,” he adds, and “some frustration” about limitations on what the FBI has been allowed to do. “But it is also balanced out by the realization that the FBI was thrown another political football in a no-win kind of situation.”