2018 FBI Background check on Kavanaugh may have been fake

Thanks for the detailed explanation of the legal technicalities around this issue. I’m not familiar enough with the scope of the FBI’s powers to answer your questions, but in any case I’m not arguing the legal technicalities but rather the broader matters of principle and the public’s right to know the facts. On that basis I would argue that if it can be shown that the original so-called investigation was just a pretext, then the authority for a new investigation would be the same one that authorized the investigation that was not, in fact, actually done.

This principle is followed for ordinary persons all the time. If someone received a security clearance, for instance, and it turns out the no proper background check was ever done, do you think he’d just be allowed to carry on, based on the “it’s all water under the bridge now” argument? Or how about someone wrongfully convicted, and now incarcerated? Do we say, when presented with new evidence, “oh, well, the guilty verdict is now a done deal”?

We don’t let someone wrongfully convicted languish in prison. Yet we appear to be content to let someone perhaps wrongfully confirmed preside on the Supreme Court.

As for the claim that the Senate “evidently considered that they had enough information to make their decision”, you and I know that the decision of Republicans to confirm one of their own to the Supreme Court was always a foregone conclusion, no matter what crimes he may have committed, provided only that there was plausible deniability. A proper investigation might have removed that pretext of plausible deniability.

This has been discussed ad nauseam upthread. A security clearance is discretionary and conditional, as are positions that require them. A seat on the Supreme Court isn’t. It doesn’t actually require a background investigation. It’s also a lifetime appointment. A security clearance can be revoked at any time, and the President has near absolute discretion in issuing and revoking them. An appointment to the Supreme Court simply isn’t an equivalent situation.

That appears to be the crux of the matter. President Trump nominated, and a Republican-controlled Senate confirmed, an individual that most Democrats consider to be manifestly unfit to serve on the Supreme Court. But that’s how that works.

What it hopes to accomplish is to complete the investigation that was intended to provide information about the suitability of a candidate. That is all. If there are sufficient members of the Senate who are sufficiently corrupt so that they will ignore any such investigation, I don’t see that as justification for ignoring the whole affair.

If you follow your proposal to its logical conclusion, we would never have hearings for anything if it is not likely to change anyone’s mind. Which only reinforces the trend of people not changing their minds, since no new information is officially presented.

I think the issue comes down to this:

There is a benefit to having as much information as possible about people appointed to powerful positions. This benefit exists regardless of the disinterest of a majority of Senators in fulfilling their Constitutional duties. This principle should not be circumvented by fraudulent investigations and stalling until the confirmation is complete. Wolfpup said it well

Not a strict legal rule, not a clear part of an established process, but serving the cause of justice. If there was incorrect behavior during an investigation, repeat the investigation, and do it properly. Not an additional investigation, and not a do-over. In all likelihood it will change nothing. Except it dispels the impression that powerful people can get away with things if they can just stall for a little while. It reinforces the confidence we need to have that our leaders are not hiding anything.

On the other hand, there is the principle that law-enforcement can’t just investigate people without cause, even people in positions of power. A very valid principle. However, it is only tangentially relevant here, in that this can be seen as a continuation of a previously authorized investigation that was never properly completed.

If you have the conclusion that the investigation should not be continued, you can certainly use this principle to support your conclusion. Just like you can claim that since an impeachment is unlikely, it eliminates any need to find the truth.

But if you have the principle that the truth about powerful people should be determined despite a fraudulent investigation, then it does not really provide a significant counterbalance. It sets no precedent for starting new investigations. It only allows the completion of previous incomplete investigations, with the same authorities and goals.

And the very-possibly deliberate decision to keep the pretext of plausible deniability in place is worth highlighting. Who was part of carrying out that decision?

It seems more than likely that there are people working for the FBI right now who not only have relevant information on the question, but are interested in providing it. They’re not all cynical political partisans, not by a long shot.


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This is the argument that counters all the nay-saying about “do-overs” and “done deals.” It doesn’t matter that any further investigation may leave Brett Kavanaugh in his SCOTUS seat. What matters is that Americans (and others) should have faith in the integrity of our system. A proper investigation, undertaken now, would support the revival of such faith.

Except an appointment to the Supreme Court is not ordinary in any sense of the word. It’s not an employment position, so analogies to hiring for jobs don’t have any place. It’s a constitutional position, established directly by the Constitution. Once a presidential appointment is confirmed by the Senate, there are only three ways for that Justice to leave the Supreme Court:

  1. The Justice retires;

  2. The Justice dies in office;

  3. The Justice is removed from office by 2/3 of the Senate, following impeachment by the House of Representatives.

The Senate doesn’t have any unilateral power to undo an appointment, once they’ve voted to confirm. The Senators can’t even initiate the impeachment process; only the House can do so. Further investigations into Justice Kavanaugh’s past can’t give the Senate any power to re-consider.

Employment examples simply aren’t analogous. The employer can always fire someone, for cause or without cause, so long as it’s not for a prohibited ground of discrimination. If the employer finds out something about the employee after hiring that the employer doesn’t like, they can dismiss the employee.

But that is an entirely political decision, by a majority of the Senate. They are entitled to take that position, and their voters in their states then get to pass political judgment on their senators. Law enforcement agencies cannot be dragged into politics. A further investigation would be for political purposes.

That is an entirely appropriate function for law enforcement, because it’s about the criminal law. It is their job to investigate allegations of criminal behaviour within their jurisdiction (eg - breach of federal law for the FBI, state law for state LEOs). If a credible allegation of wrongful conviction is made, then some branch of law enforcement should be tasked with investigating it, and making a report to whichever agency is responsible for reviewing wrongful conviction cases.

If someone has been wrongfully convicted and is held in jail, their constitutional right to liberty is infringed and it’s entirely appropriate for a law enforcement agency to be tasked to re-investigate. That’s a matter fully within their jurisdiction and expertise, and the re-investigation may uncover that a mistake has been made by the criminal law system which should be corrected.

But that kind of mistake, measured against principles of the criminal law and the constitutional rights of the individual, is far removed from the political analysis which goes into confirmation of a nominee by the Senate.

Sorry, I hit “Reply” without addressing this point.

There is a standard for wrongful conviction, measured against the legal definition of the crime they’ve been convicted of, the factual underpinning, the evidence entered before the court, and so on. Further, the assessment of whether someone has been properly convicted is a judicial one; a reviewing court can measure the conviction against those factors, all of which are governed by the substantive law of the offence and the procedural law, such as the law of evidence, as well as the applicable constitutional principles. That’s why we can say someone was wrongfully convicted - there are legal and constitutional standards which the reviewing court can apply.

There are no such legal or constitutional standards to assess the decision of the Senate to confirm a candidate. It’s purely political. One can disagree with the decision of the majority of the Senate to confirm, but I don’t think that there is such a thing as “wrongfully confirmed”, comparable to “wrongfully convicted”. If the Senate by a majority confirms a white-supremacist sexist Dominionist to the Court, that’s their call.

It’s a political decision, just like the decision to impeach is a political decision, as Minority Leader Gerald Ford once said: "an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.”

That is certainly your opinion. I happen to disagree.

There are only three ways for me to leave my ordinary employment position:

  1. I retire from the position
  2. I die while employed
  3. I am removed from my position by whatever policies my employer has in place at the time.

I see no relevant difference.

I have a question for you -
Say a Supreme Court Justice had a background investigation done, and it was sitting on the President’s desk. The President refuses to publish it, and 51 Senators of the Presidents party vote to confirm, and don’t even bother to hold a hearing.

The background investigation was requested by 49 Senators, paid for by the taxpayers, and with the purpose of creating trust in our institutions.

What is the proper course of action? Not what is legally required, but what is the proper course of action that does not violate any laws?

I say it is release the background report. At a minimum, show it to the House so they can decide if they want to start impeachment proceedings. If you don’t do that, you are explicitly obstructing the only mechanism for removing a potentially dangerous person from a position of power.

Might have then. But absent him buggering a dead child in full view of everyone, it is totally completely impossible to get the votes to Impeach. Won’t happen.

So this is pointless.

Finding the facts about this particular example could have ramifications as to what the Democrats do WRT SCOTUS. That could be a big deal, even without the votes to impeach. So no, it’s not necessarily pointless.

  1. You are removed from your position by a vote of 2/3s of the BoD, of which half are your close relatives who will never, ever, vote to remove you, no matter what you did decades before you even worked for the company.

Even if K was guilty of date rape all those decades ago, that does not legally disqualify him.

“The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour,”

Kavanaugh is behaving himself. If the continued 2 1/2 year investigation post confirmation finds, however unlikely, affirmative proof that he didn’t behave himself 38 years ago when he was a fucking kid, that is not a reason to remove him.

Congress is not his employer that can fire him at will like your boss. Gerald Ford’s quip that the House can impeach for whatever it wants was a dangerous and flippant statement. It has the responsibility to be solemn in that duty. Your position turns impeachment into a farce, a banana republic coup that threatens the independence of the judiciary.

Of course Congress has the responsibility to be solemn in the duty of impeachment and removal. However, we have recently had two examples of Congress not being required to be solemn in such duty.

There is also the idea, ISTM, of “holding office based on a falsehood” could be interpreted as “not good behavior”.

And Panama here we come. Everything becomes impeachable based on politics.

If the US turns into Panama, you can thank the GOP.

Impeachment has always been based on politics.

If he knowingly lied to congress, that could and should reasonably be held against him. And that’s something an investigation might be able to find out.

You are not reading my post carefully. I am not saying he should, or could be impeached. I am saying that the right thing to do is complete the investigation properly. The legal, properly authorized, completely standard practice investigation.
The one that was obviously botched.

Argue that instead of the straw man you created please.

Edit: To be fair, I did mention that the House could decide to impeach. Because it could happen. But that was tangential. And whether the Senate convicts is irrelevant.

The Constitution says Congress charges and then tries an official of the federal government for “Treason, Bribery, or other high Crimes and Misdemeanors.” It doesn’t say “during their term”.

According to the Congressional website, emphasis mine.

While judicial precedents inform the effective substantive meaning of various provisions of the Constitution, impeachment is at bottom a unique political process largely unchecked by the judiciary. While the meaning of treason and bribery is relatively clear, the scope of high crimes and misdemeanors lacks a formal definition and has been fleshed out over time, in a manner perhaps analogous to the common law, through the practice of impeachments in the United States Congress. The type of behavior that qualifies as impeachable conduct, and the circumstances in which impeachment is an appropriate remedy for such actions, are thus determined by, among other things, competing political interests, changing institutional relationships among the three branches of government, and legislators’ interaction with and accountability to the public. The weight of historical practice, rather than judicial precedent, is thus central to understanding the nature of impeachment in the United States.

That may be flippant and dangerous in your opinion, but in the legal opinion of the body empowered by the Constitution with the sole power of impeachment, that is the way it is.

Do you have a cite that the completely standard practice investigation was not done? What exactly is the completely standard practice investigation? Normally the investigation is a background check by the Oval office then the Senate Judiciary Committee hearing. Standardly the FBI does not do a investigation.

The FBI was asked to do a extra investigation, and I have not seen anything to be that proves that was obviously botched? They were given exactly one week.

But the question then is- and then what? What are we gonna do with that investigation?

Ford accused Kavanaugh of sexual assault while they were both in high school in 1982. That was forty years ago. Nothing more could really be found out- everyone’s memories from forty years ago are totally, completely worthless. There are other accusations but they are all about that old.

Judy Munro-Leighton made up a spurious accusation.

I have no doubt that Kavanaugh was a drunken party boy who very likely took advantage of several women during that period. That was made clear. But again- 40 years ago. The Senate confirmed him. It is over.

The memories of Kavanaugh and Ford and other from that period are worthless. They remember what their memories have changed into over the years. I have no doubt of Fords sincerity, but her testimony, without physical evidence, from 40 years ago is worthless… and so is his, for that matter.

People do not see to realize how malleable & fallible memories are. Even though we have had several threads here on the mandala effects and on implanted memories.