When I was a U.S. attorney, I worked closely with the FBI. When the FBI investigators were looking at something, what they wanted was information. The FBI is a machine for the acquisition and retention of information on cases. When the FBI began repelling and deflecting information in its investigation of Judge Brett Kavanaugh’s alleged history of sexual misconduct last year, that was unusual — a warning flag.
Because of my position on the Senate Judiciary Committee, people reached out to my office to find out where to go in the FBI with information relevant to the allegations against Kavanaugh. My team and I saw this deflection firsthand. We were given the runaround by the FBI. No one was designated to receive information related to Kavanaugh; people trying to help were referred to an FBI “tip line.”
One warning flag after another
That was also unusual. Usually, FBI agents want to talk with people who claim to have information and to take statements (often referred to as “302s”). A witness interview allows agents to pursue lines of questioning and to evaluate credibility. A tip line may supplement that process, but it ordinarily does not replace it.
Another flag went up when FBI Director Christopher Wray began to disavow responsibility for the investigation. He pointed out very publicly that the Kavanaugh investigation was not being run under FBI investigative protocols but following directions from the White House — a passing of the buck seemingly to distance his organization from what it had to know was a bogus investigative effort. Indeed, Wray told the Senate Homeland Security and Governmental Affairs Committee in October that the FBI’s investigation of the sexual assault claims was “limited in scope,” and that the bureau’s authority to carry out the investigation was “as requested by the adjudicating agency. ... In this case, it's the White House."
Republicans repeatedly described the allegations against Kavanaugh as "uncorroborated." Many allegations were in fact corroborated under well-established principles of law. But the party rallying around that talking point had a powerful motivation to thwart any investigation that might turn up even more corroboration and explode the talking point. More warning flags flapped.
Furthermore, senators had a very brief chance to look at the investigative product. Because of the confidentiality requirements we were obliged to accept, I cannot discuss the substance of any of the evidence. What I can say is that had I been given an investigative package like the one I saw in that room, as a U.S. attorney I would have sent the matter back for further investigation. This whole mess has been heavily politicized, but I sincerely doubt any U.S. attorney of any party would have made a decision to prosecute or not based on such a cursory investigative effort.
No evidence FBI pursued tips
Finally, there was the tip line. I have not been able to get any answers as to how that worked. I do know that information came in. A tip line ordinarily produces everything from odd ravings to meaningful information, and this one was no different, as far as I could tell. But the short time clock gave the FBI very little time to run down credible leads.
Worse, I see no evidence that any lead from the tip line was ever pursued. It is possible that credible leads from the tip line were never even reviewed and sorted. The FBI's so-called tip line could have been more of a tip dump: a place to dispense with unwelcome investigative materials while the clock ran out. If so, that’s banana republic stuff, and it’s beneath the FBI to have played along.
Drama may never end: On Kavanaugh investigation, Democrats will never be satisfied
The problem with incomplete and ineffectual investigations is that the dumped or deflected information remains out there, and the truth does tend to come out eventually. That may be why Director Wray sought to protect his agency from this investigation.
It’s now time to investigate the investigation, and to compare it with the gold standard of a real FBI investigation. Every sign points to this having been as much a cover-up as an investigation. That’s not the way America is supposed to work.
Democratic Sen. Sheldon Whitehouse represents the state of Rhode Island, where he was formerly a U.S. attorney. Follow him on Twitter: @SenWhitehouse
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This article originally appeared on USA TODAY: Investigate the FBI investigation of Brett Kavanaugh: Sen. Whitehouse