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Here’s the Real Reason Why Republicans Don’t Want an FBI Investigation


US Supreme Court nominee Brett Kavanaugh speaks during the first day of his confirmation hearing in front of the US Senate on Capitol Hill in Washington DC, on September 4, 2018. - President Donald Trump's newest Supreme Court nominee Brett Kavanaugh is expected to face punishing questioning from Democrats this week over his endorsement of presidential immunity and his opposition to abortion. Some two dozen witnesses are lined up to argue for and against confirming Kavanaugh, who could swing the nine-member high court decidedly in conservatives' favor for years to come. Democrats have mobilized heavily to prevent his approval.

There were a couple of stand-offs Thursday on Capitol Hill between Brett Kavanaugh and Democratic Party-affiliated U.S. senators at a contentious hearing before the Senate Judiciary Committee. The question of opening an FBI investigation into the allegations against Kavanaugh was raised once again.

It’s been suggested that if Kavanaugh has nothing to hide he would be open to such an investigation. It didn’t appear that he himself is opposed per se to such an investigation — he said he would do what the Committee wanted — but he also didn’t say the magic words “open an FBI investigation.”

That aside, there are certainly political and practical reasons for Republican lawmakers not to pursue the FBI option, according to an FBI expert familiar with a Single Scope Background Investigation (SSBI).

Andrew Bringuel, a now-retired FBI Agent Supervisor Instructor and Researcher at the FBI Academy’s Behavioral Science Unit with more than 27 years of experience, told Law&Crime that SSBIs like the one being requested by Democratic lawmakers take a while. The typical one takes 7 months.

“The reason GOP and Kavanaugh might not want an FBI Investigation is because a typical SSBI takes 7 months,” he explained. “Even expedited it may take more than a month or two, which of course drags into the mid-terms.”

Let’s do the math. If an FBI investigation were to be opened today and it took 7 months, that’s the end of April 2019. Well after the mid-terms, and fast approaching 2020.

If it took “more than a month or two,” indeed this drags into the mid-terms, after which time the vote on Kavanaugh might very well be even more in jeopardy.

Why would the investigation drag on that long? Bringuel says it’s “partly bureaucracy and partly the scope of the SF86.”

SF86 is short for Standard Form 86, which is a questionnaire for national security positions to be used “by the United States (U.S.) Government in conducting background investigations, reinvestigations, and continuous evaluations of persons under consideration for, or retention of, national security positions.”

Bringuel said that even a summer FBI intern must go through an SSBI process that not even a Supreme Court nominee, the president or the vice president would.

“The Congressional Research Service (CRS) advised Congress that they should pass legislation requiring a security background but to date they only take a loyalty oath. The President & Vice President and Supreme Court Justice does not conduct a SSBI,” he said.

Bringuel explained that the SSBI has a ten-year scope, “unless there is derogatory or criminal information that leads to further investigation.”

Kavanaugh has not just been accused by Dr. Christine Blasey Ford of sexual assault 36 years ago. He’s also facing other allegations by Deborah Ramirez and Julie Swetnick.

“In this case there could be state sex charges that do not have a statue of limitations attached. The security investigation is pretty exhaustive,” he said. “The interviewers ask questions of character, health, drug & alcohol use, work history, associations, bias & prejudice, and financial issues like bankruptcies.”

“The investigation also looks at any information about blackmail. These investigations average about 7 months,” he added . “They also require a lifestyle polygraph. The FBI would likely do a deep dive on the high school yearbook and the interview of Mark Judge and others.”

The FBI expert speculated that if President Donald Trump were to ask the FBI to investigate “it would likely take a couple months, even if it were pushed, to complete in a competent fashion.” That means it would likely go past the mid-terms.

“It could likely go past the mid-term elections and if the GOP loses control in the Senate they could lose their nominee,” Bringuel said, cautioning that if the FBI were to find “discrepancies” in Kavanaugh’s prior testimony under oath that could lead to “larger legal issues.”

Additional context

Sen. Dick Durbin (D-Ill.) asked Kavanaugh directly to turn around and ask White House counsel Don McGahn to pause the proceedings until the FBI opens and completes an investigation of Dr. Christine Blasey Ford’s allegation of sexual assault, and the two other allegations made against the nominee.

Durbin quoted Kavanaugh saying “I welcome any kind of investigation.” Then he challenged him to turn to McGahn.

“Turn to Don McGahn and tell him it’s time to get this done. An FBI investigation is the only way to answer some of these questions,” he said.

Committee chairman Sen. Chuck Grassley (R-Iowa) interjected and said there would be no pause in the hearing.

Kavanaugh said that it was up to the Senate Judiciary Committee to decide on how to proceed. He also said that the FBI “does not make conclusions.” Rather, he said, that’s the Committee’s job.

Sen. Kamala Harris (D-Calif.) pressed Kavanaugh again on the subject later in the afternoon and was not satisfied with his response.

“I’ll take that as a ‘no,'” she said.

[Image via Saul Loeb/AFP/Getty Images]

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Matt Naham is the Senior A.M. Editor of Law&Crime.