Why the FBI Used Its Kid Gloves on Brett Kavanaugh

There has always been a stunning double standard when it comes to FBI investigations: The FBI uses its kid gloves for people being vetted to serve the larger US governmental system while ruthlessly hounding activists and others who are perceived as threats to state power. The FBI’s cursory investigation into the charges made by Christine Blasey Ford against now Supreme Court Justice Brett Kavanaugh was just the latest example of this double standard.

At the core of contention in Kavanaugh’s now-completed confirmation process was the need for a more complete investigation to see if the nominee was “suitable” to sit on the Supreme Court — specifically if the claims of sexual assault against him had any merit. For their part, Republicans said due diligence had already been done, noting that Kavanaugh had already been subjected to six background checks. What they didn’t make clear is that those checks were done previously over the course of his career, for positions less than that of the Supreme Court.

Meanwhile, quite a few people — thanks largely to the Democratic leadership and the mainstream media — were led to believe that another FBI investigation was the best vehicle for getting at the truth of things. Many were then sorely disappointed when the new FBI investigation failed to turn up anything “disqualifying.”

So what happened? Was the FBI’s lack of findings a result of a constrained inquiry dictated by the Republicans and the president, predisposed against finding anything untoward about Kavanaugh? Perhaps, but a deeper explanation lies in the FBI’s long history of double standards — its smoothing the way for those seen to be in service of the larger US governmental system while reserving boundless efforts against those seen as opponents.

Criteria for the FBI’s “Suitability Reviews”

Contrary to what many reasonable people might think — and to the assumptions that left witnesses who independently approached the FBI to offer information about Kavanaugh feeling surprised after their offers were disregarded — the FBI’s checks on people being vetted to serve the larger US governmental system are not set up to go very deep or be particularly analytical. According to Greg Rinckey, a lawyer whose specialty is employment law and the security clearance process, “FBI background checks aren’t meant to dig up decades-old claims that never resulted in a police report or criminal charges.”

Yale University, which prepares a considerable number of people for government service, has a webpage dedicated to laying out the governmental background check process to its advancing students. As it explains, the first level of investigation is something called a “Suitability Review,” which itself has different categories:

High Risk positions require a full Background Investigation (BI), which is a MBI [Minimum Background Check] plus a review of the candidate’s employment, residential, and educational history for the preceding five years with the possibility that some of the information sources will be interviewed in person.

A suitability review, it should be noted, is different from a security clearance — something judges do not require. That check is more intensive, including checking with “former employers, coworkers, friends, neighbors, landlords, and schools along with a review of credit, tax, and police records.”

That process however, does not seem to go all that deep either, which would explain why criminal records and malfeasance — while sometimes weeding out certain people — often become an issue after people have been in office, as was the case for recent Trump administration officials Scott Pruitt, Brenda Fitzgerald, Tom Price and Rob Porter. Porter is particularly noteworthy in this regard. Unlike Kavanaugh — who recommended him for his job as a White House adviser — he had a police report for domestic violence as late as 2010, but this does not appear to have been an issue in his vetting.

Such is the relative kid-glove treatment enjoyed by those seeking to work for the United States government. For those perceived to be working against the government, however, there are other criteria entirely. Anyone who has watched “The Sopranos” understands that FBI agents don’t just sit at their computers doing background checks but are instead proactive, carrying out their investigations over an extended period of time. The Bureau itself says it “may delay making an arrest in order to obtain additional evidence proving the suspect’s guilt.” What it doesn’t mention is that there may never be an arrest.

That is the case with unambiguously criminal cases. However, the FBI is more than a “crime-fighting” outfit; it is also the country’s chief domestic intelligence agency, and as such, carries out the open-ended investigations of a political police.

Comparing Kavanaugh’s Experience to the FBI’s Treatment of Dissidents

According to press reports, the FBI conducted only nine interviews on Brett Kavanaugh in its final investigation — this for a man accused by multiple women of sexual assault. It is worth contrasting Kavanaugh’s experience with an investigation of the famous American composer, Aaron Copland — someone who was neither applying for a government job nor suspected of committing a crime. Aaron Copland was, however, suspected of being a member of the Communist Party in the ’30s and ’40s, and as a result, was intensively investigated.

Copland’s FBI file contains a report from 1950 that includes 20 pages of investigatory data, outlining every time his name appeared in the Daily Worker (the Communist Party’s newspaper), every organization perceived to be a Communist front he was associated with, references to 32 “Confidential Informant” sources that supplied information on Copland, and three “leads” to be pursued in New York, Los Angeles and the Berkshires in Massachusetts, to ascertain more information.

Similarly, the musicologist and folk archivist Alan Lomax — someone else accused of no crimes, but who worked for the Library of Congress — was also suspected of being a communist. Lomax’s file documents interviews with what appear to be his former professors at the University of Texas — the names are redacted — his employers and his wife’s background.

The subsequent reports on Lomax offer evidence not of his “unsuitability” let alone any law-breaking, but of his politics. For example, one interviewee “informed that LOMAX was an extreme liberal in his political views.” Another informant deigned to psychoanalyze Lomax — which the FBI felt was relevant enough to include in the report — saying that Lomax “was a victim of too much adulation by his father and being very intellectual, was extreme in his views and dealt in theory rather than actuality.” That said, the source could offer “no information indicating any connection the Communist Party.”

The efforts against the Communist Party, were not just about passively compiling dossiers, but were part of a larger program of disruption, that, among other things, led to Copland and Lomax being included in the infamous “Red Channels” — a manual for the blacklist of the fifties.

While the FBI surveilled a range of individuals and organizations beyond the Communist Party throughout the sixties, its methodology for monitoring and investigating the different groups was largely the same. One example of its approach is apparent in the case of activist Stephen Charles Hamilton. In 1966, the FBI undertook an investigation of Hamilton, who had taken part in the Free Speech Movement in Berkeley. Hamilton was an early anti-Vietnam War activist and for a time was associated with the Progressive Labor Party.

Even though he had no record of criminal activity aside from his arrest at the Free Speech protest, Hamilton nonetheless was subjected to an investigation that included checking his records at East Los Angeles College, checking police records in South Gate Los Angeles, reviewing indices in Chicago and “where appropriate, contact informants”; and reviewing records in Wheaton, Illinois, where he had attended school. One report, by way of follow-up, noted that Hamilton had “never been in any trouble” in South Gate, but the clerk who reported to the FBI said her son was a friend of Hamilton and she had heard he had been arrested in the Berkeley area recently for “carrying a concealed weapon. She said she believed the weapons was a pipe cleaning tool.” In turn, Hamilton, then 22, was recommended for inclusion in the Bureau’s Security Index, a decades-long program that called for the detention of certain individuals in the case of war or national emergency, and required ongoing monitoring of them as a result.

A Rigorous Vetting of the FBI’s Own Informants

It was not, however, only political dissidents that the Bureau investigated with such rigor. The Bureau also vetted its informants thoroughly. A good example of this is Richard Aoki, the Japanese American radical activist who secretly informed for the FBI throughout the ’60s and early ’70s. Not only did he have a full background check done on him before he was offered the position, the Bureau itself sent the preliminary findings on Aoki back to its field agent for further information. Specifically, they decided that, “Authority is not granted at this time to take any steps to develop Aoki as an informant.” Their reasons?

Your letter does not disclose results of your file search, efforts to obtain information regarding his reliability, stability, general reputation, present and past employment and check of local credit and arrest records.

In Aoki’s case, the agents responsible were able to clear the matter up, and he would go on to be what the Bureau considered a “reliable source” for almost 20 years, giving highly damaging intelligence on the Black Panther Party, the Socialist Workers Party, and the strike for ethnic studies at UC Berkeley, among other things.

The FBI’s Current Scrutiny of Antifa and Anarchists

The FBI’s stark double standard continues into the present. Indeed, had the FBI taken the kind of interest in Kavanaugh as it does for anarchist activists, we would likely have seen a much more thoroughgoing investigation of our newest Supreme Court justice.

Just as the FBI used to expose suspected communists to exhaustive and invasive screenings, it now has turned its focus to antifa (anti-fascist) activists. Note how broadly — and open-ended — the Bureau’s parameters are for investigating this category of activist is. Here is what FBI Director Christopher Wray told Congress in November 2017:

[W]e are not investigating antifa as antifa, that is an ideology and we don’t investigate ideologies, we are investigating a number of what we would call anarchist extremists investigations [sic], where we have properly predicated subjects of people who are motivated to commit violent criminal activity on kind-of an antifa ideology. So we have a number of active investigations in that space all around the country.

Here it is worth noting that while much was made about avoiding a “fishing expedition” in the Kavanaugh matter, the Bureau’s mandate and scope of inquiry into “anarchist extremism” appears to be boundless and with no temporal limitations:

Anarchist extremism is nothing new to the FBI. One of our first big cases occurred in 1919, when the Bureau of Investigation (as we were called then) investigated a series of anarchist bombings in several US cities. And during the 1970s, the FBI investigated anarchist extremists such as the Weather Underground Organization, which conducted a series of bombing campaigns.

Not only does the Bureau trace back anarchist extremism to 1919, it also lumps the Weather Underground — ostensibly a Marxist-Leninist organization — into that category, making that example fit the definition. It is also a way of reinforcing a notion of criminality – which can be used to suppress those given that label. Nonetheless, it is illustrative of a plasticity that the Bureau appears to have when its target is something other than a potential Supreme Court justice.

While the background checks and security efforts undertaken for people like Kavanaugh are aimed at elevating individuals and ultimately strengthening the overall state system, the efforts against dissidents have an entirely opposite objective. Such people are to be watched closely, arrested when possible, or otherwise have their lives and efforts disrupted and derailed. No wonder the “process” of investigation should be so strikingly different.

Lessons From the Kavanaugh Debacle

Brett Kavanaugh’s recent confirmation process cannot be understood as anything other than a concentrated effort at the reassertion of patriarchy and the extolling of misogyny. In that respect, it is perhaps not surprising that the FBI, never known for its left-leaning sensibilities, so firmly reinforced the wrong side.

That said, given the contention (ostensibly between Democrats and Republicans, but reflecting a larger divide among the ruling elites) over the future direction of the United States, it is possible that the FBI at some point could be forced to unearth uncomfortable “facts” — there are no absolutes in this equation. However, that the FBI was forced to carry out even a superficial investigation is testament to the presence of those — especially women — willing to step outside “respectable” bounds to challenge the politicians and their institutions.

Regardless, the cursory background investigation of Brett Kavanaugh — someone whose record shows a commitment to depriving people of their rights, reinforcing inequality and intensifying the oppression of women — stands in stark contrast to the FBI’s invasive investigations of and unwanted attention toward those who stand in opposition to such things.