The Real Question on Justice Kavanaugh’s Background Check

The Real Question on Justice Kavanaugh's Background Check

By Asha Rangappa
Sen. Sheldon Whitehouse of Rhode Island has called on newly confirmed Attorney General Merrick Garland to assist the Judiciary Committee in reviewing the FBI's 2018 background check of Brett Kavanaugh before Kavanaugh joined the Supreme Court.
Whitehouse suggested that the investigation into the sexual misconduct allegations against Kavanaugh was "fake" and did not follow proper procedures. The senator is right to ask for the review, but given the procedures that govern such investigations, he may be aiming at the wrong target.
Background checks for political appointees are run out of the FBI's administrative rather than criminal division. This is important in terms of the scope and latitude that the FBI has in pursuing these investigations. A criminal investigation has every investigative tool at its disposal, and does not conclude until the crime or threat has been resolved. These investigations are (at least in a normally functioning Justice Department) independent and free of political interference from the White House or Congress.
By contrast, background checks like Kavanaugh's are done on behalf of a requesting "client" — in this case, the White House. They are typically limited to interviews with people who know the subject and checks of criminal records and credit history.
When a person joins government service or is nominated for a post, an initial background check will cover every place a subject has lived, traveled or worked since they were 18. The subject usually provides references, the FBI interviews them and then asks for other references, building an expanding circle of information.
Background checks conducted after an initial background check — for example, if a person leaves government and returns a few years later — normally only go back to the end of the last check. This is important in understanding the scope of the FBI's Kavanaugh investigation in 2018. After graduating from law school in 1990, Kavanaugh clerked for a federal judge, which would have required a background check.
This check would have likely encountered people who interacted with him in high school and college. Kavanaugh then alternated between private and government jobs until his appointment to the District of Columbia Court of Appeals in 2006. As a result, his 2018 background check would have only gone back to 2006, making the people interviewed well removed from his school years.

Posted by Asha Rangappa

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