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The White House Still Has No Idea How to Vet Brett Kavanaugh

Arbitrary deadlines and external pressure are just the latest problems with a bad process.

October 2, 2018

Cross-posted from The Washington Post.

The follow-up FBI investigation ordered by President Trump into the sexual assault allegations against Supreme Court nominee Brett M. Kavanaugh is a far cry from the way the White House usually vets nominees.

Reports this weekend said the administration initially had a preapproved list of witnesses for the FBI to pursue. Trump denied that, and the White House is now telling the bureau to talk to anyone it needs to — which is good, as such a limitation would severely hamstring the FBI’s ability to follow the evidence wherever it might go. Professional investigators need to keep an open mind and follow all credible leads. Building a precise blueprint in advance is inconsistent with the principles of an unbiased and thorough investigation and could curtail the otherwise crucial information that might still be collected.

This is only the first of several problems with the supplemental background investigation underway, though.

The arbitrary one-week deadline is another. In my experience authorizing hundreds of background investigations as an associate counsel in the White House, and later reviewing them as the director of the Obama administration’s presidential personnel office, I found that the FBI can do a lot in one week, including interviewing scores of witnesses. As many former government officials have noted, the bureau has agents it can dispatch across the country, and this investigation is surely the agency’s top priority this week.

But there remains a risk that the week will end with some loose ends. Sure, in the Obama White House, we provided target dates for finalizing a background investigation (requesting a turnaround of just a few weeks in a handful of cases), but we always understood that we needed to build in some wiggle room in case of the unexpected. The FBI is operating without that luxury here, and, unfortunately, some things are simply out of its control. For example, what if local officials need time to find and retrieve legal or medical records from the 1980s? Or if a key witness is referred to investigators at the very end of the week?

The investigators here are operating under incredible public scrutiny. Already, photographers have snapped images of FBI agents approaching Deborah Ramirez, who says Kavanaugh exposed himself to her when they were Yale students. Ordinarily, background investigations are conducted confidentially, before a nomination is made public, and without witnesses being told what position a subject is under consideration for. Even supplemental investigations ordered after a nomination aren’t announced publicly, and efforts are made to keep them quiet. This is for good reason — not just for preserving privacy and confidentiality, but also because investigators want to minimize the possibility of creating bias among witnesses or creating opportunities for witnesses to prep.

External pressure of a different sort also poses a problem. The president’s public attacks against the FBI and dangerous politicization of the Justice Department potentially set up the investigation for failure regardless of the outcome. Trump has already laid the foundation for disregarding the facts discovered by the FBI as merely the result of an allegedly partisan and biased process. Perhaps that is a prelude to things to come.

How could this have been avoided? And how could the administration prevent a repeat?

One place to start would be to reinvigorate this White House’s vetting process. It’s clear from Kavanaugh’s confirmation spectacle that the White House hasn’t learned the lessons from past vetting errors. Trump aides have hurriedly put forward nominees, such as Rear Adm. Ronny L. Jackson for the Department of Veterans Affairs. They put forward nominees with issues previously considered terminal — both Mick Mulvaney and Andrew Puzder failed to pay payroll taxes for household employees. And they stood behind candidates with vetting flags long after public support waned, continuing to support Tom Price despite conflict-of-interest issues when he was secretary of health and human services and former White House aide Rob Porter after claims of domestic abuse had surfaced. Even in this case, it wasn’t until Sen. Jeff Flake (R-Ariz.) forced the president’s hand Friday that he decided to formally investigate the allegations against Kavanaugh.

If Trump cared to get to the bottom of the allegations against Kavanaugh, he could have ordered the FBI to investigate as soon as the allegations came to light — as former Democratic and Republican presidents have done. Instead, we’ve seen a rushed process that prioritized speed over precision, political calculation over uncovering the facts. Rather than reviewing formal FBI reports, senators on the Judiciary Committee were left filtering through information they received in drips and drabs from various witnesses before Thursday’s hearing. Some of that information came in letters signed by attorneys rather than witnesses; other information came in closed-door meetings with Senate investigators untrained in sexual violence investigations; still other details just bubbled up through press accounts.

No standard of vetting is guaranteed to turn over every leaf. And I don’t know what the White House may have asked Kavanaugh or uncovered during its internal vetting process. But it became apparent — with Trump’s statements and those of his allies on Capitol Hill — that White House aides do not think the allegations had any bearing on Kavanaugh’s fitness for the job or were even relevant to the selection process. That’s jarring in and of itself, especially if we think of all the other, less lofty positions that the president has been able to fill with such a dismal vetting process.

The vetting process is not convenient. It takes up scarce resources from the White House and across the government. It’s usually very lengthy, on average lasting six to eight weeks at minimum. It’s intrusive and uncomfortable for candidates. And when it’s thorough, you sometimes lose good candidates as a result.

But it also matters. More than just telling us whether someone has violated a law, good background checks help confirm whether we’re elevating people of integrity to esteemed positions of public trust and how they might perform under the pressures of those positions.

A real system for vetting tells the White House, among other things, how potential nominees will handle a cumbersome and bureaucratic process, which will test their patience and require extreme due diligence on their part. It also shows whether they will succeed under the close scrutiny of lawyers and senators and whether they are willing to work to not embarrass themselves, their prospective agency or the president, even inadvertently. Without it, we’re guaranteed to have future hearings like the one Thursday — the Trump administration has given us chaos borne of dysfunction.

Unless and until this White House takes vetting seriously, we’ll continue to see serious allegations, along with sideshows and diversions. And more nominees will have their lives upended, some of them unfairly so, because the White House didn’t sufficiently look into their backgrounds in advance. They’ll proceed through the process blind to potential issues that may provide detractors and political opponents with ammunition. And they won’t be afforded the opportunity to bring all the facts to bear in support of their defense.

Perhaps most important, government and its credibility will continue to suffer. The appointments process will exacerbate the undeserved reputation by some that government can’t get anything right, filled with corrupt cronies and crooks. No vetting process is perfect. But the American people deserve better than the half-baked mess that got us to the place we are today.

(Image: Jim Bourg/Getty)