Protect the FBI This Time??

Don’t Expect Wray and Rosenstein to Protect the FBI This Time

The Kavanaugh probe isn’t like other investigations. Here’s why.

By NELSON W. CUNNINGHAM

In President Donald Trump’s long and strange war on the FBI and Justice Department, we have become accustomed to the sight of FBI Director Christopher Wray and Deputy Attorney General Rod Rosenstein standing up bravely to the president. Again and again, these men have been objective tribunals standing up for independence, thoroughness and freedom from political interference.

Now it seems they might have another reason to speak up, as reports swirl that political figures at the Senate and the White House are limiting the FBI’s investigation into Brett Kavanaugh’s background. Trump said on Monday that the FBI could interview whomever it wanted, but only “within reason.” He added, “But they should also be guided, and I’m being guided, by what the senators are looking for.”

But we shouldn’t expect Wray and Rosenstein to stand up and push back against this political interference. For one, different rules apply to background checks than to independent investigations. Another reason might lie in shared history: These three men go back—way back—in their relationships and shared aspirations.

First, background checks are not independent investigations. Here, the FBI is very much an organ of the White House, assisting the Senate (meaning today, the Republican majority) in what is an inherently political mission to examine a presidential nominee. In my experience as Judiciary Committee general counsel working on Supreme Court nominations (under Chairman Joe Biden), FBI background checks are conducted in a spirit of close cooperation between the White House and the president’s political allies on the committee. (Trump admitted as much Monday when he said, “I’m guided by the senators.”) The senators nominally set the direction of the background check, requests from the Senate go through the White House before reaching the FBI, and the results come back to the senators, who can ask for more.

But there is another reason we cannot expect Wray and Rosenstein to buck against White House direction of the investigation. To them, Kavanaugh is not merely the target of an FBI investigation. Kavanaugh is a longtime colleague, political ally and perhaps even friend. The three men have known each other for decades, working closely on the shared mission of advancing conservative judicial and policy goals. We simply cannot expect Wray and Rosenstein to block the advancement of their fellow conservative and longtime colleague to the highest court in the land.

Thirty years ago, Wray was two years behind Kavanaugh at Yale College, and followed him to Yale Law School. Famously small and insular, Yale Law School’s reputation is largely liberal but it has an intense, dedicated cadre of conservative professors and students. This conservative group has played an outsized role in conservative judicial circles, as the cradle for the influential Federalist Society back in 1982.

Kavanaugh and Wray surely knew each other then, and later. According to their Judiciary Committee questionnaires, each joined the Federalist Society upon starting Yale Law and continued as members up through the Trump administration. The Society’s website shows each were active over the years since, speaking at conferences and contributing to Society publications.

The Federalist Society has famously shaped the federal judiciary since its founding, promoting candidates who follow a small-government, socially conservative and textualist interpretation of the Constitution. Every member of the Supreme Court appointed by a Republican since Clarence Thomas in 1991 has been a Federalist. Trump has bragged that the Federalist Society provided him the list of Supreme Court nominees from which he has so far selected Neil Gorsuch and Kavanaugh. The goal of shaping the federal judiciary unites the Trump and the Never-Trump wings of the Republican parties.

In the George W. Bush administration, Kavanaugh and Wray went on to be political appointees and colleagues. Wray was a senior aide to the deputy attorney general, and Kavanaugh was in the White House Counsel’s office, where he would have worked closely with the Justice Department on nominations and other matters. Wray then became assistant attorney general for criminal, where he would often have intersected with the White House Counsel’s Office.

Rosenstein did not attend Yale Law School—he went to Harvard, alas—but he also joined the Federalist Society there. He served alongside Kavanaugh on Ken Starr’s independent counsel team. Together, they joined to investigate Bill and Hillary Clinton and their aides and business associates in what became a virtual cradle for appointments in the Bush 43 and Trump administrations. Each served President George W. Bush, and each were nominated by him to federal circuit judgeships (Kavanaugh advanced after three years of waiting, but Rosenstein did not and was instead appointed to be United States attorney for Maryland).

Rosenstein and Wray also served together as senior appointees in the George W. Bush Justice Department, and Wray wrote a letter supporting Rosenstein’s nomination for deputy attorney general in 2017.

So Kavanaugh is no stranger to Wray and Rosenstein. Indeed, they have labored together across presidential administrations to advance the goals of Republican presidents, and in particular to help shape the conservative direction of the judiciary and the Supreme Court above all. Wray and Rosenstein have demonstrated their courage in standing up to Trump when he has transgressed the boundaries of the FBI’s independence; but they are full ideological partners with the Trump White House in moving the courts to the right. Does that mean they would hide evidence detrimental to Kavanaugh? No—by all accounts they are honorable public servants dedicated to their institutions. But we can’t expect them to stand up to the White House and Senate Republicans to push for a harder or deeper investigation, demanding that more witnesses be interviewed or that broader lines of inquiry be followed.

This week, with the extended Kavanaugh background check, the FBI is once more thrust into a politically sensitive task. Once again, its largely career officers will be required, under the white-hot lights of the nation, to sift truth from fiction. And at the end of just one week, to make a report to the president, the Senate and the public that could help shape the direction of the Supreme Court for decades. A critical moment for the FBI.

But don’t count on Wray and Rosenstein to get involved, even in the face of claims that the limited scope of the probe will make the FBI look toothless. The only ones who can expand the Kavanaugh background check further are the Republican senators who forced it in the first place—Flake, Susan Collins and Lisa Murkowski.

On Monday, Flake said he would push for a thorough inquiry. Let’s hope he does so. If he and the other senators don’t object, no one else is going to force a full and fair FBI investigation.