Don’t expect Federalist Society members, Wray and Rosenstein, to protect the FBI this time

By | October 3, 2018

Nelson W. Cunningham writes:

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 bravely standing up 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 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 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. [Continue reading…]

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