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The FBI’s Kavanaugh Dilemma

Why the agency is in the crosshairs yet again in Washington

The FBI has completed its rushed investigation of allegations that Supreme Court nominee Brett Kavanaugh committed sexual assault as a teenager. While senators will begin reading the agency’s report Thursday morning, and portions may leak soon thereafter, it’s possible that the public won’t see it in full for years. But with the White House crowing that the report does not support Christine Blasey Ford’s allegations, it’s likely that its findings will be underwhelming—no more conclusive about Kavanaugh’s guilt or innocence than last week’s Senate Judiciary Committee hearings were.

What is inevitable, however, is that the FBI will be thrust into yet another political maelstrom, mere weeks before a nationwide election. In fact, that’s already happening, as Democrats question the thoroughness of the investigation while Republicans treat it as definitive. The Kavanaugh case highlights the agency’s dilemma under President Donald Trump: whether or not it can restore broad credibility in a divided Washington.

The recent politicization of the FBI can be traced back to this month two years ago, shortly before the presidential election. James Comey, the FBI director at the time, was faced with a difficult decision. He could break protocol and publicly announce that the agency’s investigation of Hillary Clinton’s private email server had been re-opened, or he could remain quiet, ensuring that Republicans, who were likely to maintain majorities in Congress, would seize upon that decision once it became public (likely after the election). Anticipating that Clinton would become president, he opted for the former, a decision played a potentially decisive role in Trump’s victory less than two weeks later.

In seeking to protect the agency’s independence, Comey guaranteed that the agency would be seen as overtly political. After the election, many Democrats blamed him for Clinton’s loss, while Trump treated him as an ally, embracing him in the White House upon their first meeting. (Comey would later tell his friend Benjamin Wittes that he attempted to blend in with the drapes to avoid Trump’s attention.) But after Comey was fired by Trump—purportedly for his mishandling of the email investigation, but also because of the FBI’s Russia investigation—the former director established himself as a prominent critic of the president’s assault on law and order, endearing him to Democrats.

As Comey’s criticisms of Trump became more pointed, the investigation into Russian interference by the special counsel, former FBI Director Robert Mueller, was beginning to ensnare many of the president’s closest advisers and associates. The Russia probe has only further endeared the agency to those Democrats, who view it and the special counsel as their best chance of removing Trump from office.

While Democrats were embracing the FBI, however, Republicans—long defenders of the agency—began to sour on it in large part due to Trump’s furious tweets and public comments about Comey and the alleged “witch hunt” against him by the FBI and other members of the “deep state.” This reversal came to a head in February, when House Democrats and Republicans were bickering over the release of memos detailing alleged misconduct within the FBI during its investigation of the Trump campaign’s ties to Russia. During that spat, Republicans led by Congressman Devin Nunes criticized the FBI’s mishandling of that investigation, while Democrats such as Congressman Adam Schiff defended the agency—and, more unusually, its need for secrecy. A poll released that month revealed that 69 percent of Democrats thought the FBI was doing a good job, while only 49 percent of Republicans agreed. In 2003, a poll asking the same question found nearly opposite results, with 63 percent of Republicans and 44 percent of Democrats favoring the FBI’s performance.

Now, at the White House’s behest, the FBI has prepared yet another politically charged report—one that appears to favor Republicans, for several reasons. The time constraints on the investigation have prevented the FBI from pursuing many leads. But it’s not clear that more time would yield resolution. The alleged assault happened more than three decades ago, and the three people that Ford says were in the room at the time of the alleged assault have had very different responses to the allegations. Ford alleges that Kavanaugh held her down and attempted to strip off her clothes, while Kavanaugh, and his friend Mark Judge claim that no such incident ever took place. While Ford’s friend Leland Keyser, who was allegedly with her the night of the assault, says that she believes Ford, she does not remember the incident. Still, the FBI reportedly didn’t contact more than 40 potential sources who claimed to have information about the allegations against Kavanaugh.

A more thorough report would have been more credible. In that event, the agency would have investigated not only the incident, but Kavanaugh’s claims about his youthful behavior and alcohol use, which are relevant to his credibility—both as it pertains to Ford’s allegations and to his fitness to serve on the Supreme Court. In tearful, angry testimony last week, Kavanaugh not only claimed that the allegations were baseless, but that he was something of a choir boy in high school—an occasional drinker, yes, but not the aggressive drunk that some have alleged. If these and other claims made under oath are shown to have been inaccurate, Kavanaugh’s defense would be damaged. He may even have committed perjury. Without investigating those claims, however, the FBI cannot be said to have fully investigated Ford’s accusation.

The problem is that if the agency had investigated Kavanaugh more fully, it would have been attacked again by Republicans, who would have accused it of leading yet another witch hunt against one of their own. But the White House precluded such a scenario by insisting that the FBI complete its investigation by the end of this week and imposing other constraints designed to limit its scope. Democrats and Ford’s attorneys are already attacking the White House for refusing to allow FBI agents to interview Ford and Kavanaugh. Notably, they are not attacking the agency—something that Republicans would surely do, if the report did not favor them—which only highlights how drastically the political situation has changed since Trump’s election.

Given this pressure, it’s possible that the agency is once again attempting what Comey did—to thread the needle politically in an attempt to preserve its independence. As the FBI’s investigation of Clinton’s emails and Trump’s Russia connections have shown, though, both parties will champion the agency when it suits their purposes and abandon it when it does not. That’s not going to change, no matter what the FBI has found—or not found—about Brett Kavanaugh.