Don’t Expect The Kavanaugh FBI Investigation To Solve Everything
Last week, Republicans finally agreed to have the FBI investigate Christine Blasey Ford’s sexual assault allegations against Supreme Court nominee Brett Kavanaugh. Ford, Democratic senators and even some Republicans had been pressing for an investigation. But it was only after Sen. Jeff Flake (R-Ariz.) said he wouldn’t vote for Kavanaugh without one that the Republican leadership and the White House agreed to call for one.
The FBI investigation is an essential step in this process. Neutral investigators will interview key characters in the controversy and, in theory, people will tell the truth because there are criminal penalties if they don’t.
Though the bureau isn’t going to reach any conclusions as part of the background check process, both sides are hoping it will provide some closure and give clarity to senators like Flake ― who are on the fence about Kavanaugh’s confirmation ― some answers as to who is telling the truth.
But don’t expect too much from the investigation.
In 1991, the FBI investigated Anita Hill’s sexual harassment claims against Clarence Thomas, who was then up for confirmation to the Supreme Court. The bureau heard from 22 witnesses over three days.
But that process was not entirely smooth, and the investigation actually became a tool used to try to discredit Hill.
One big difference between Kavanaugh and Hill is that the FBI investigation for Hill happened before she testified in front of the Senate Judiciary Committee.
While Ford and her legal team have long been asking for an FBI investigation of her allegations, Hill was initially uneasy about such a probe. Hill and her friend, Susan Hoerchner ― who could corroborate the allegations ― thought the Senate and its investigators, rather than the FBI, should be the ones looking into the matter.
“They didn’t use the word ‘interview,’ it was ‘investigation,’” Hoerchner later said, according to the book Strange Justice by Jane Mayer and Jill Abramson.
Hill eventually agreed to an FBI investigation, as long as the report that went to the committee could be accompanied by a statement that she wrote. She wanted to make sure her words were not misconstrued by anyone.
Two agents, John B. Luton and Jolene Smith Jameson, arrived at her house on Sept. 23, a couple of weeks before she ended up testifying before the Senate Judiciary Committee.
In her memoir, Speaking Truth to Power, Hill remembers that no one else was present with her for the interview with Luton and Jameson ― a decision she would later regret. From her recollection of the event:
After I answered specific questions about Thomas’ behavior, Agent Luton asked if there were other details that I would feel comfortable relating to them. I declined to add anything further. He suggested that I might feel more comfortable giving details to Agent Jameson alone. I again declined to add to the information that I had provided. I thought what I had said was more than enough to convey the nature of what had happened. I still did not trust their role in the process. Moreover, their inquiry was not a demanding or probing one. It was professional but relaxed. …
Before they left, Agent Luton asked me a question he felt compelled to justify. He asked if there was anything in the way I dressed or carried myself that might have led Thomas to believe it was appropriate to talk to me about pronography [sic] or to make otherwise suggestive remarks. Agent Luton said that by asking the question he was in no way suggesting an answer. In fact, he said that while he was certain that I had not dressed or acted inappropriately, he felt obliged to ask. It was difficult to know whether the agent was catering to the myths about sexual harassment or simply anticipating the defense against my claims.
The interview lasted about 45 minutes, and although Hill had expected some follow-up questions, there weren’t any.
Hill’s answers in the FBI investigation were later used against her. Hill’s testimony was more extensive than her FBI interview, and she revealed more details about Thomas’ behavior ― such as her allegation that he once asked who put a pubic hair on his Coke can.
As Mayer and Abramson noted, her testimony put the FBI under “mounting pressure.”
“They could either admit that they had done an inadequate job or suggest that Hill had fabricated the new details expressly for the hearings,” they wrote. It chose the latter option.
On Oct. 11, both agents issued sworn affidavits essentially suggesting that Hill had embellished her testimony. Luton’s affidavit said Hill had failed to mention specific details in her interview with them.
Jameson’s affidavit was similar, implying that Hill had withheld information despite their best efforts to get it out of her.
And as Adam Serwer at The Atlantic noted, Hill had previously told a Democratic Hill staffer about the pubic hair incident, meaning she had been consistent all along and the FBI agents simply weren’t thorough enough.
There was also a discrepancy between what Hill remembered saying and what the FBI agents remembered hearing. Hill said she told Luton and Jameson that Thomas warned her not to ever speak of his behavior toward her because it would ruin his career. The FBI agents, however, remembered her saying that he told her it would ruin her career.
“I remember precisely what I said to the agents because I could not forget Thomas’ own words,” Hill wrote in her memoir. “Nor could I forget that the tone of his words had been neither apologetic nor remorseful. The only regret he expressed was that his behavior might appear improper to others.”
GOP senators later told the press that these remarks showed a “discrepancy” between what she told the Senate Judiciary Committee and what she told the FBI ― another reason to doubt her, in other words.
Sen. Orrin Hatch (R-Utah), one of the few remaining Judiciary Committee members who was on the panel in 1991, suggested on Wednesday that he would also be looking to use against Ford the fact that she wants to talk to the FBI.
The FBI report is not expected to be made public, unless someone leaks it. But Democrats have complained about what seems to be the limited scope of the investigation. The White House originally limited the interviews that the bureau could conduct, and several people who say they have information they’d like to give to the FBI ― including Ford ― said they’ve yet to be interviewed by anyone from the bureau.
Indeed, what many Democrats fear is that the FBI investigation, rather than doing a thorough job getting to the bottom of Kavanaugh’s behavior, will simply provide cover for senators who want to vote for Kavanaugh but are nervous about doing so.
After all, in 1991, the Senate approved Thomas to the Supreme Court, despite an FBI investigation and public testimony from Hill.