FBI stuck in yet another political controversy

The FBI is once again in the crosshairs of a political controversy gripping Washington.

Democrats are clamoring for the bureau to reopen a background investigation into Supreme Court nominee Brett Kavanaugh, after an allegation of sexual misconduct surfaced amid his confirmation proceedings.


His accuser, Christine Blasey Ford, is refusing to testify publicly before the Senate Judiciary Committee until the FBI fully investigates her accusations.

But it ultimately falls on the White House to direct the FBI to take action, and President TrumpDonald John TrumpSessions accepts 'Fox News Sunday' invitation to debate, Tuberville declines Priest among those police cleared from St. John's Church patio for Trump visit Trump criticizes CNN on split-screen audio of Rose Garden address, protesters clashing with police MORE has signaled he has no intention of doing so.

The developments have thrust the agency back into the center of a political fight that it has little stake in. The drama comes as the FBI continues to draw ire from Trump and his Republican allies who have lambasted the bureau over what they say were political biases in its decision to pursue an investigation into Russian interference in the 2016 presidential election.

The controversy surrounding Kavanaugh is shifting almost daily as Republicans press ahead with efforts to shepherd his nomination through the upper chamber in the coming weeks.

Ford went public with her allegations on Sunday, days after it was revealed that Sen. Dianne FeinsteinDianne Emiel FeinsteinGraham announces hearing on police use of force after George Floyd killing Frustration builds in key committee ahead of Graham subpoena vote  The Hill's Morning Report - Presented by Facebook - Major space launch today; Trump feuds with Twitter MORE (Calif.), the top Democrat on the Senate Judiciary Committee, had passed a confidential letter to the FBI containing information about possible sexual misconduct involving Kavanaugh when he was in high school.

Ford alleges that Kavanaugh sexually assaulted her at a house party when they were high school students in Maryland in the 1980s. Kavanaugh has denied the allegations and has agreed to testify publicly on Monday.

The FBI confirmed last week, at which time the details of the matter were scarce, that the information had been added to the background file on Kavanaugh compiled at the request of the White House.

Since then, Ford’s highly publicized accusations have triggered debate over whether the FBI should reopen that investigation to examine the credibility of her allegations.

Proponents of further FBI action argue that an investigation is critical for senators to make a judgment on Kavanaugh’s character before they vote on his nomination for a lifetime appointment to the Supreme Court. Reviving the investigation, they say, would be consistent with past practice, including what was done in the controversy involving Anita Hill and Justice Clarence Thomas.

“There’s a lot that the FBI could do here,” said Joyce Vance, a law professor at the University of Alabama and former U.S. attorney appointed during the Obama administration. “At a minimum, the FBI should talk to every witness under the penalty of perjury.”

Critics, meanwhile, say that the FBI would uncover little that can’t be revealed publicly through congressional hearings or statements by those involved.

“There is nothing for the FBI to do,” said John Malcolm, a former deputy assistant attorney general for the Justice Department’s criminal division during the George W. Bush administration. “This is now a political process. It’s for Dr. Ford and Kavanaugh to testify, if they so choose, and for the senators to make their own credibility determinations and cast their vote.”

“The Democratic senators are trying to draw the FBI back into a political firestorm of sorts, but they’ve done what they are supposed to do,” added Malcolm, who’s now a legal expert at the conservative Heritage Foundation.

Through her attorneys, Ford signaled Tuesday that she would not testify until the FBI investigates her allegations.

“A full investigation by law enforcement officials will ensure that the crucial facts and witnesses in this matter are assessed in a non-partisan manner, and that the Committee is fully informed before conducting any hearing or making any decisions,” her attorneys wrote in a letter to Judiciary Committee Chairman Chuck GrassleyCharles (Chuck) Ernest GrassleyRosenstein steps back into GOP crosshairs Is Trump encouraging the world's use of national security as stealth protectionism? Expanding tax credit for businesses retaining workers gains bipartisan support MORE (R-Iowa).

The FBI conducts background investigations for potential employees or appointees for agencies that request them by interviewing associates of the individual, performing local police checks and taking other steps to compile a report on the candidate. If derogatory information surfaces after an investigation is completed, it is up to the requesting body — in this case, the White House — to direct the FBI to reopen the investigation.

“I don’t think the FBI really should be involved because they don’t want to be involved,” Trump told reporters Tuesday, affirming his support for Kavanaugh.

The Department of Justice (DOJ), meanwhile, said in a statement that the FBI “does not make any judgment about the credibility or significance of any allegation” and that the bureau’s role “is to provide information for the use of the decision makers.”

The DOJ also noted that it would not be appropriate to open a criminal probe into the matter because the allegations do not involve a federal crime.

Grassley has offered Ford the choice of testifying publicly or privately, or to interview with committee staff, saying Tuesday there was “no reason for any further delay” in her testimony.

Committee Democrats, meanwhile, have written to FBI Director Christopher Wray and White House counsel Don McGahn asking that the background investigation be reopened and completed before any hearing occurs.

Kavanaugh is still scheduled to testify Monday, but it is unclear what impact Ford’s refusal to testify will have on next week’s committee proceedings.

The Justice Department and FBI have been a magnet for political controversy for the better part of two years, drawing intense scrutiny as a result of former FBI Director James ComeyJames Brien ComeyRosenstein steps back into GOP crosshairs The Hill's Morning Report - Presented by Facebook - Trump tweets as tensions escalate across US This week: Senate reconvenes as protests roil nation amid pandemic MORE’s public disclosures shortly before the 2016  presidential election about an investigation into former Secretary of State Hillary ClintonHillary Diane Rodham ClintonSessions accepts 'Fox News Sunday' invitation to debate, Tuberville declines The Memo: Trump lags in polls as crises press Biden savors Trump's latest attacks MORE’s use of a private email server. Clinton and her allies have said Comey’s actions, in part, cost her the election, and the Justice Department inspector general eventually faulted Comey for taking actions that were “extraordinary and insubordinate.”

More recently, Republican lawmakers have feuded with the Justice Department as a result of their investigation into allegations of bias at the FBI, seen by critics as an effort to discredit special counsel Robert MuellerRobert (Bob) MuellerCNN's Toobin warns McCabe is in 'perilous condition' with emboldened Trump CNN anchor rips Trump over Stone while evoking Clinton-Lynch tarmac meeting The Hill's 12:30 Report: New Hampshire fallout MORE’s investigation into possible collusion between Trump’s campaign and Moscow during the 2016 presidential campaign.

But, unlike other controversies, observers note that the FBI is not accused of being at fault in the Kavanaugh matter.

“I think that the FBI is sort of being thrown into this in a role that really is kind of tangential to this whole debate,” said one former administration official who requested anonymity to speak candidly.

The developments, nevertheless, have put the spotlight on a body that has weathered attacks from both sides of the aisle since before the 2016 presidential election.

Trump has publicly lashed out at Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsSessions accepts 'Fox News Sunday' invitation to debate, Tuberville declines What you need to know about FBI official Dana Boente's retirement Rosenstein steps back into GOP crosshairs MORE and other DOJ and FBI officials over the Russia investigation, which he views as a political “witch hunt” against him.

“I think that morale has been impacted,” Ron Hosko, a former assistant director at the FBI, said of Trump’s attacks, though he expects that many bureau officials are likely to continue to “hunker down” and continue their work.