Over the last few years, the Supreme Court majority has issued a series of rulings that have fundamentally reshaped America — ending federal protections for abortion rights, upending the ability of federal agencies to issue regulations, and granting the president near-total immunity from criminal prosecution. A key vote in all of those decisions was Supreme Court Justice Brett Kavanaugh.

Kavanaugh was confirmed by the United States Senate on October 6, 2018, on a vote of 50-48. New evidence released last week suggests that the razor-close vote was unduly influenced by a sham supplemental FBI investigation that was tightly controlled by the Trump White House. 

In September 2018, after the initial round of confirmation hearings for Kavanaugh, reports began to surface of an allegation of sexual assault against Kavanaugh by Christine Blasey Ford, a professor at Palo Alto University. In a letter to former Senator Dianne Feinstein (D-CA), Ford described the attack:

Brett Kavanaugh physically and sexually assaulted me during high school in the early 1980’s. He conducted these acts with the assistance of his close friend Mark G. Judge. Both were one to two years older than me and students at a local private school. The assault occurred in a suburban Maryland area home at a gathering that included me and four others. Kavanaugh physically pushed me into a bedroom as I was headed for a bathroom up a short stairwell from the living room. They locked the door and played loud music precluding any successful attempt to yell for help.

On September 23, 2018, the New Yorker published an article that included an allegation by Deborah Ramirez, who attended Yale with Kavanaugh, that Kavanaugh "exposed himself at a drunken dormitory party, thrust his penis in her face, and caused her to touch it without her consent as she pushed him away."

Kavanaugh denied both allegations. But the Senate Judiciary Committee scheduled an additional hearing for September 27, 2018, in which both Kavanaugh and Ford testified. After her testimony, even Kavanaugh's most prominent defenders in the Senate conceded that Ford's account was "credible." 

Lacking the votes for immediate confirmation, Senate Republicans agreed to delay a floor vote one week to allow time for a supplemental FBI investigation of the allegations by Ford and Ramirez. Now, Senator Sheldon Whitehouse (D-RI) released a report documenting how that investigation — key to Kavanaugh's Senate confirmation — was deeply flawed. 

Former President Donald Trump said publicly, contrary to contemporaneous media reports, that the FBI was free to interview whomever they wished:

Whitehouse's report reveals that this was a lie. In reality, the "Trump White House strictly controlled which witnesses the FBI was authorized to interview and which leads the FBI could follow." The FBI did not interview two people with the most firsthand knowledge of the alleged incident, Ford and Kavanaugh, because the White House would not let them. 

The Trump White House "specified the name of each witness the FBI was permitted to contact as part of the supplemental background investigation" and, in some instances, "specified particular lines of questioning." The Trump White House never gave "the FBI discretion to decide whom to interview, or what follow-up investigative steps to take." Ultimately, the FBI conducted just 10 interviews. 

Notably, the FBI was not permitted to interview "individuals who came forward alleging to have information directly relevant to the allegations against Kavanaugh, including details that could corroborate Ford’s and Ramirez’s accounts, but who were not present at the events in question." For example, Max Stier, another Yale classmate of Kavanaugh, reached out to the FBI and said he had information relevant to Ramirez's allegations. He was never interviewed. In 2019, Stier told the New York Times that he "saw Mr. Kavanaugh with his pants down at a different drunken dorm party, where friends pushed his penis into the hand of a female student." The FBI also did not contact a long list of corroborating witnesses provided by the attorneys for Ford and Ramirez. 

When the investigation was completed a week later, the Senate Judiciary Committee Republicans declared that the FBI's "Supplemental Background Investigation confirms… there is no corroboration of the allegations made by Dr. Ford or Ms. Ramirez." Then-Senate Majority Leader Mitch McConnell (R-KY) emphasized that "these allegations have not been corroborated."  Several Republican Senators explained that the lack of corroboration found by the FBI sealed their support:

Senator Shelley Moore Capito (R-WV): “There was no new corroborating evidence.”

Former Senator Bob Corker (R-TN): “The supplemental background investigation found absolutely zero corroboration of the allegations that have been made.”

Former Senator Jeff Flake (R-AZ): “[W]e’ve seen no additional corroborating information.”

What was unmentioned was that one reason no corroborating information was found was that the FBI was specifically prohibited by the Trump White House from pursuing most corroborating information. It is unclear which Senators, at the time, were unaware of that fact and which Senators were covering it up. 

The sham FBI tipline

During the supplemental investigation, the FBI promoted a "tip line" and encouraged anyone with information about the allegations against Kavanaugh to use it. The existence of the tip line was used as proof "of the supplemental background investigation’s thoroughness."

The FBI reported receiving "over 4,500 tips, including phone calls and electronic submissions" related to Kavanaugh. Whitehouse reported, however, that the FBI simply "forwarded the tips it collected from the tip line to the Trump White House, without any investigation." The FBI only reviewed the tips "for relevancy to Kavanaugh and to remove duplicates." This is the standard procedure the FBI uses once a background investigation into a nominee is closed. 

Why did it take six years to find out what happened?

Whitehouse and others have been pursuing the facts about the supplemental FBI investigation of Kavanaugh since 2018. Why did it take so long to get to the truth?

According to Whitehouse, "the Trump Administration repeatedly thwarted Senate investigators’ subsequent attempts to get to the bottom of how the supplemental background investigation was conducted." FBI Director Christopher Wray testified in 2018 and 2019 that the supplemental investigation was consistent with "longstanding polices, practices, and procedures." Asked in a follow-up letter for more information about those policies, Wray failed to respond. Later, Whitehouse discovered there were no written policies at all. 

The situation improved somewhat during the Biden administration but, with Wray still in charge of the FBI, Whitehouse continued to face "considerable delays in receiving answers to those questions, and often received incomplete answers or answers that fully ignored lines of inquiry."

The FBI did not begin to allow a review of all the relevant communications related to the Kavanaugh investigation between the agency and the Trump White House until late 2023.