It’s rare that American history provides as neat a precedent as the confirmation process for Justice Clarence Thomas provides for the nomination of Brett Kavanaugh to join him on the Supreme Court. It’s not a perfect precedent, of course, but both in broad strokes and in specific areas, the allegations made by Anita Hill against Thomas mirror the accusation made by Christine Blasey Ford against Kavanaugh.
The question of the moment is how to evaluate Ford’s allegations. We’ve moved beyond “he said, she said” territory, but it’s still the case that observers are left largely to their own evaluations of the veracity of the accuser and the accused.
Tuesday evening, an attorney for Ford, Lisa Banks, indicated that her client did not plan to appear before the Senate Judiciary Committee at a hearing scheduled for Monday until there has been an independent investigation to evaluate her claims and Kavanaugh’s denial. In short order, committee Chairman Sen. Charles Grassley, R-Iowa, seemed to rule that out.
“Nothing the FBI or any other investigator does would have any bearing on what Dr. Ford tells the committee, so there is no reason for any further delay,” he said.
His colleague on the committee, Sen. Orrin Hatch, R-Utah, went further. “The FBI does not do investigations like this,” a tweet from his office read. “The responsibility falls to us.”
That’s not really true, as the example from the Thomas-Hill hearings makes clear.
The Kavanaugh allegation first was presented to Sen. Dianne Feinstein, D-Calif., in a July letter, with a request that Ford’s identity be kept private. That limited how Feinstein was able to use the information, but she eventually turned it over to the FBI. In a statement, the Department of Justice indicated that, in accordance with policy, it forwarded the letter to the White House Counsel’s Office but didn’t launch an investigation because it didn’t deal with a federal crime. It’s worth noting that the White House counsel is Donald McGahn, who has played a lead role in shepherding Kavanaugh’s nomination through the Senate process.
President Donald Trump was asked on Tuesday whether he thought the FBI should be involved.
“I don’t think the FBI should be involved because they don’t want to be involved, if they wanted to be I would certainly do that,” Trump said. “As you say, this is not really their thing. The senators will do a good job.”
But Chris Strohm of Bloomberg News, citing someone familiar with the matter, reported that the FBI hadn’t said it didn’t want to be involved in evaluating the Ford accusations. In 1991, when Hill’s allegations were made public, the FBI got involved at the direction of the White House.
“On Sept. 23, the allegation was brought to the attention of the Judiciary Committee,” a White House statement at the time read. “The Judiciary Committee immediately informed the White House. In consultation with the committee, the White House promptly directed the FBI to conduct a full, thorough and expeditious investigation. Upon completion of the FBI investigation on Sept. 26, the report was submitted to the White House and the committee.”
Note that the investigation only lasted three days, as CNN’s Kevin Liptak points out.
The White House of George H.W. Bush determined that Hill’s allegation was unfounded. It was only after that point that the allegation became public. In his testimony during the subsequent hearings on the issue, Thomas said that it was when the FBI raised the issue on Sept. 25 that he first learned of Hill’s allegations.
At the time of his alleged interactions with Hill, Thomas was a federal employee, which some argued gives the FBI jurisdiction that it lacks in the Kavanaugh case. The FBI does have an established role in vetting federal nominees, though, predicated on unearthing information that might inform whether a candidate for a position was a security risk.