/Speedy confirmation schedule for Amy Barrett injects urgency into FBI background probe, analysts say

Speedy confirmation schedule for Amy Barrett injects urgency into FBI background probe, analysts say

For now, the nomination of federal appeals judge Amy Coney Barrett to the Supreme Court centers on a debate over her conservative views on abortion, guns and health care.

In the background, however, the FBI is reviewing the Notre Dame Law School professor’s life as part of a vetting process that was thrust into the spotlight two years ago during the rocky Senate hearings preceding the confirmation of Associate Justice Brett Kavanaugh.

After women accused Kavanaugh of sexual assault, which he denied, President Donald Trump ordered the FBI to reopen its background inquiry. Trump allowed just a week to complete the work, prompting criticism from Democrats that the process was tilted in favor of the nominee.

This time, an expedited confirmation schedule — hearings are scheduled to start Oct. 12 before the Senate Judiciary Committee — has pushed the FBI inquiry into high gear.

Late Wednesday, California Sen. Dianne Feinstein, the Judiciary Committee’s ranking Democrat, objected to the accelerated confirmation timeline, asserting in part that it jeopardized the “FBI’s ability to thoroughly vet the nominee.”

President Donald Trump announces Judge Amy Coney Barrett as his U.S. Supreme Court nominee on Sept. 18, 2020, in Washington, D.C.

“The timeline for consideration of Judge Barrett’s nomination is incompatible with the Senate’s constitutional role,” Feinstein wrote to committee Chairman Lindsey Graham, R-S.C. “We again urge you to delay consideration of this nomination until after the presidential inauguration. The Senate and the American public deserve a deliberative, thorough process, and this falls far short.”

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The FBI has declined to comment on the status of its inquiry, which can be an intrusive element of the confirmation process.

In a statement, the FBI described its role as “a fact-finder”: It provides the results of the inquiry and does not make recommendations about the qualifications or fitness of nominees.

“I imagine that the (FBI’s) Indianapolis Division is a really busy place right about now,” said Jim Davis, referring to the bureau’s main office in Barrett’s home state. Davis, a former agent, has participated in dozens of nominee inquiries.

“A lot of work is put into these investigations,” he said, “and everybody knows this is going to get a lot of attention.”

What is the scope of the FBI’s inquiry?

The inquiries, known as special investigations or “spins,” delve into the personal backgrounds of nominees to the Supreme Court and top posts in a presidential administration.

The White House sets the scope of the background investigation, the FBI said. The time needed to complete a review depends largely on the White House’s direction and the life experience of the nominee.

Among the considerations: the number of places the nominee has lived (those neighborhoods are routinely canvassed by investigators), her financial history, and foreign travel.  

The reviews are not criminal investigations, but they can highlight conduct that may open nominees to additional scrutiny.

In addition to the allegations against Kavanaugh, acting Pentagon chief Patrick Shanahan, whom Trump had planned to formally nominate to the post, resigned last year shortly after USA TODAY reported that the FBI had been investigating a violent encounter with his then-wife in 2010. 

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“Depending on the nominee, these can be pretty wide-ranging investigations,” Davis said. “They typically go everywhere they have ever lived.”

In Barrett’s case, investigators are not starting from scratch.

Supreme Court nominee Judge Amy Coney Barrett meets with Senate Majority Leader Mitch McConnell of Kentucky, on Capitol Hill in Washington,DC on  September 29, 2020.

As recently as three years ago, Barrett was the subject of a background investigation for her nomination and subsequent confirmation to the U.S. Court of Appeals for the Seventh Circuit.

Barrett’s Senate confirmation hearing for the appellate court largely focused on her legal philosophy, from capital punishment to abortion, and whether her Catholic faith would unduly influence her decisions. (She vowed to follow Supreme Court precedent.)

The closest lawmakers came to reviewing Barrett’s personal conduct was when then-Sen. Al Franken, D-Minn., pressed her on her acceptance of speaking fees for addressing a group sponsored by the Alliance Defending Freedom, designated by the Southern Poverty Law Center as an anti-LGBT group

What are investigators looking for?

Oliver “Buck” Revell, a former FBI associate deputy director, said investigators would likely begin Barrett’s examination where the previous review left off in 2017.

“You really don’t have to go all the way back, given the substantive amount of data that’s already there,” Revell said. “It’s not like you are starting with a totally new nominee.”

Investigators will likely focus on Barrett’s public writings in the past three years, any social media activity and speeches.

“This will be a 24/7 effort until it’s complete,” Revell said.

Subjects of these inquiries are typically interviewed shortly after their nomination is announced. Davis said those meetings often produce leads that direct the course of the investigation, which can require interviews of between 50 and 100 people. 

“The central question to be answered in these things is whether derogatory information is found,” Davis said. “If so, that certainly is highlighted. If not, that is the finding in the final report.”

Who can read the FBI’s report?

Since the president makes the nomination, the White House is the primary client, though the findings are shared with the Senate panel weighing the nominee’s confirmation.

If lawmakers call for additional investigation, like they did with Kavanaugh, their requests go through the White House, which has the discretion to expand the inquiry.

During his time at the FBI, Revell said he had a number of interactions with then-Sen. Sam Nunn, D-Ga., who served as chairman of the powerful Senate Armed Services Committee, which weighs the nominations of Pentagon officials.

James N. Mattis, center, nominee for secretary of Defense, arrives with former senator Sam Nunn, left, and former senator William Cohen on Jan. 12, 2017, prior to the start of his confirmation hearing before the Senate Armed Services Committee.

“He was very involved; he asked a lot of questions and took his job seriously,” Revell recalled.

But even a Senate chairman like Nunn needed the approval of the White House to request that the FBI dig more into a nominee’s background. “Sometimes,” Revell said, “we had to negotiate.”