Germy, in the comments to Mistermix’s post, has brought breaking, though previously known, news to our attention via Senator Whitehouse:

AFTER NEW DETAILS ON KAVANAUGH INVESTIGATION SURFACE, SENATORS CALL ON FBI FOR ANSWERS ON HANDLING OF ‘TIP LINE’

4,500 tips to FBI went uninvestigated following supplemental investigation, newly released FBI letter shows

Washington, DC – Senators Sheldon Whitehouse (D-RI), Chris Coons (D-DE), Dick Durbin (D-IL), Patrick Leahy (D-VT), Richard Blumenthal (D-CT), Mazie Hirono (D-HI), and Cory Booker (D-NJ) wrote to FBI Director Christopher Wray last evening requesting additional information on the FBI’s 2018 supplemental background investigation of Supreme Court Justice Brett Kavanaugh. The senators’ request follows a letter from the Bureau to Whitehouse and Coons revealing new details on the Kavanaugh background investigation, including that the FBI gathered over 4,500 tips in relation to the investigation without any apparent further action by FBI investigators. The Bureau also confirmed that tips from the tip line were instead provided to the Trump White House Counsel’s office, where their fate is unknown.

“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,” the senators write in their letter sent today. “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.”

Whitehouse and Coons initially raised the lackluster supplemental background investigation in a Senate Judiciary Committee hearing with Director Wray in July 2019. Whitehouse observed during the hearing the clear lack of process through which the public or members of Congress could relay information to the FBI after the troubling allegations against Kavanaugh made headlines nationwide. Coons likewise pressed Wray for a clear procedure. As both senators noted, the only conduit for information potentially relevant to the allegations was a “tip line,” the product of which was apparently never pursued by the Bureau. During the hearing, Wray echoed Republican claims that the FBI conducted the investigation “by the book,” while asserting that supplemental background investigations are less rigorous than criminal and counterintelligence investigations.

On August 1, 2019, Coons and Whitehouse wrote to Wray asking for a complete picture of how the FBI handled the supplemental background investigation of Kavanaugh. They asked why the FBI failed to contact witnesses whose names were provided to the FBI as possessing “highly relevant” information; how involved the Trump White House was in narrowing the scope of the investigation; whether the FBI had used a tip line in previous background investigations to manage incoming allegations and information regarding a nominee; and more.

Nearly two years later and after repeated follow-up requests, the FBI finally responded to Whitehouse and Coons’s questions. The June 30, 2021 letter from the FBI Office of Congressional Affairs revealed new information on the Kavanaugh investigation: that Justice Kavanaugh’s nomination “was the first time that the FBI set-up a tip line for a nominee undergoing Senate confirmation,” and that tip line received “over 4,500 tips, including phone calls and electronic submissions.” The FBI apparently pursued none of these tips. Instead, by the FBI’s own account, it merely “provided all relevant tips” to Trump’s Office of White House Counsel, the very office that had constrained and directed the limited investigation.

Whitehouse, Coons, Durbin, Leahy, Blumenthal, Hirono, and Booker call on the FBI to answer a range of outstanding questions surrounding the Bureau’s use of the tip line and the relevant information it yielded. The senators press the Bureau for any records and communications related to the tip line investigation, including “all relevant tips” described in Wray’s letter that the FBI “provided . . . to the Office of White House Counsel.”

Full text of the senators’ letter yesterday is available below. Also available as PDFs are:

• Senators’ letter sent yesterday;

• June 30 FBI letter to Whitehouse and Coons;

• Whitehouse and Coons August 2019 letter to Wray.

There’s also a long tweet thread by Senator Whitehouse:

So when Wray said they followed procedures, he meant the “procedure” of doing whatever Trump White House Counsel told them to do. That’s misleading as hell.

— Sheldon Whitehouse (@SenWhitehouse) July 22, 2021

I explained during the Kavanaugh hearings, in comments and on the front page, that what Senator Whitehouse is now rightfully angry over today was what was in fact going on. What is amazing here isn’t that Senator Whitehouse is upset, he is and should be. What is amazing here is that he seems to not understand the process that the FBI adheres to when conducting background investigations for judicial and political nominees, which, as a senator, he should know.

As I explained at the time, background investigations conducted by the FBI for judicial and political appointments are NOT criminal investigations. They are done by special agents and investigators and analysts detailed for that duty and the client is not the DOJ, nor is it the Senate committee of jurisdiction. The client for these background investigations is the White House Counsel’s Office and the White House Counsel is in ultimate charge and provides the ultimate direction of the inquiry. Only information that the White House Counsel wants released is released to the Senate committee of jurisdiction for their review. This whole secondary/reopened investigation, just like a game of chance in a casino, was rigged for the White House by the White House through the White House Counsel and his office. The FBI was only ever going to respond to Don McGahn’s instructions and work within the parameters he gave them because that’s the process.

It is important to remember that the only reason Don McGahn was first the Trump 2016 campaign counsel and then the White House Counsel is because his real boss is Mitch McConnell. Whenever Senator McConnell needs a trusted agent – to make a Federal agency dysfunctional and break it or to babysit a temperamental candidate/president – McConnell places McGahn into that position. McGahn controlled this secondary, supplementary investigation into Kavanaugh, just as he controlled the first one, not anyone at the FBI or the DOJ. And McGahn controlled it for McConnell. My guess is McConnell was thrilled when Senator Flake came to him with this compromise proposal for a secondary FBI investigation because it allowed McConnell to play Flake for the chump he is while getting what he wanted – Kavanaugh confirmed and the ability to leverage the contentious confirmation process for political gain – all while allowing it to seem that a rigged game was really an honest process.

No one who was paying attention should be surprised at all at what happened then or at what is being reported now. Not least a Democratic senator. That seven members of the Senate Judiciary Committee do not seem to understand the process for FBI background investigations for judicial and political nominees, including who controls them, is a bit concerning. They’re right to be asking for details and Senate Judiciary Committee investigation now, but it would have been better if they all had known how the process works and been hammering this over and over and over again during the confirmation. Especially Senator Coons who is the one who cut the deal with Senator Flake for the supplemental FBI background investigation.

If these seven senators did not realize this was how the process for FBI background investigations into judicial and political nominees until today, then, quite frankly, shame on them. This process is neither a state secret that is highly classified and compartmented, nor is it rocket science. It was reported on and commented on in real time. And it was their job to know and act on that knowledge. If they knew and didn’t act then, then shame on them. If they didn’t know until now, it’s still shame on them. While I doubt it would have made much of a difference, it was their job to know and to act on that knowledge, which they didn’t. They failed then and are angry now. The time to have been angry was then, because it might have prevented failure.

The reason that Senator McConnell and his caucus have been embarrassing Democratic senators and frustrating their, as well as Democratic president’s, efforts since January 2009 is that Senator McConnell pays attention to every possible process that could be useful to him or could be used against him. Senate Democrats are not going to beat him if they are constantly surprised by how the government they are supposed to be overseeing as part of their jobs works.

DO BETTER SENATE DEMOCRATS!

Edited to add:

I realize this is most likely performative surprise. It would have been nice if there’d been some performative surprise at the time when it might have made even a little bit of difference.

Open thread!

Senator Whitehouse Is Surprised By Something He Should Not Be Surprised About: That the Secondary Kavanaugh Background Investigation Was RiggedPost + Comments (115)