FBI director Chris Wray is facing new scrutiny of the bureau’s handling of its 2018 background investigation of Brett Kavanaugh, including its claim that the FBI lacked the authority to conduct a further investigation into the then supreme court nominee.
At the heart of the new questions that Wray will face later this week, when he testifies before the Senate judiciary committee, is a 2010 Memorandum of Understanding that the FBI has recently said constrained the agency’s ability to conduct any further investigations of allegations of misconduct.
It is not clear whether that claim is accurate, based on a close reading of the MOU, which was released in court records following a Freedom of Information Act request.
The FBI was called to investigate allegations of sexual misconduct against Kavanaugh during his Senate confirmation process in 2018, after he was accused of assault by Christine Blasey Ford, a professor who knew Kavanaugh when they were both in high school. He also faced other accusations, including that he had exposed himself to a classmate at Yale called Deborah Ramirez. Kavanaugh denied both accusations.
The FBI closed its extended background check of Kavanaugh after four days and did not interview either Blasey Ford or Kavanaugh. The FBI also disclosed to the Senate this June – two years after questions were initially asked – that it had received 4,500 tips from the public during the background check and that it had shared all “relevant tips” with the White House Counsel at that time. It is not clear whether those tips were ever investigated.
The FBI said in its letter to two senators – Sheldon Whitehouse and Christopher Coons – that the FBI did not have the authority under the 2010 MOU at the time to “unilaterally conduct further investigative activity absent instructions from the requesting entity”. In other words, the FBI has said it would have required explicit instructions from the Trump White House to conduct further investigation under the existing 2010 guidelines on how such investigations ought to be conducted.
But an examination by the Guardian of the 2010 MOU, which was signed by the then attorney general, Eric Holder, and then White House counsel, Robert Bauer, does not make explicitly clear that the FBI was restricted in terms of how it would conduct its investigation.
The MOU, which was released in court documents in 2019 as part of Freedom of Information Act litigation brought against the US government by Buzzfeed, also does not explicitly state that the White House had the power to set the process parameters on any investigation. The MOU does seem to suggest that the White House had the authority to limit the FBI to investigate particular issues and questions.
Wray is likely to face scrutiny on why information that was specific to the allegations of sexual misconduct were not fully explored, including evidence that was reportedly offered to investigators by an alleged witness named Max Stier, an attorney and former classmate of Ramirez, who reportedly notified senators that he had witnessed an event similar to the one recounted by Ramirez.
Stier’s account was never examined by the FBI.
In a statement to the Guardian, Sheldon Whitehouse, the Democrat from Rhode Island who has led Democrats’ demand for answers on the investigation, said: “In its years-late response to our questions, the FBI leaned hard on the notion that this MOU limited its authority to be the FBI and investigate wrongdoing. Now that we have the MOU, it’s even harder to understand the Bureau’s excuses for ignoring credible information it received. Director Wray ought to be ready to answer my questions about this episode – I won’t stop asking until he does.”
The FBI declined to comment.
Wray will be testifying before the Senate on Wednesday, at a hearing that will be focused on the FBI’s handling of its investigation into Larry Nassar, the convicted sex offender who served for 18 years as the team doctor of the US women’s national gymnastics team. Simone Biles, the US gymnast and Olympic gold medalist, will also be testifying.
Kavanaugh was confirmed to his lifetime appointment on the court on 6 October 2018 by a vote of 50-48 and helped cement a conservative majority on the powerful body.