October 10, 2018

Harris Presses FBI Director on White House Limits on Kavanaugh Investigation

WASHINGTON, D.C. – At a hearing of the Homeland Security and Governmental Affairs Committee today, U.S. Senator Kamala D. Harris pressed FBI Director Christopher Wray on the FBI’s recent supplemental background investigation of then-Judge Brett Kavanaugh. Under questioning by Harris, Wray confirmed that the White House directed the FBI’s investigation into Kavanaugh to be “very specific” and “very limited” in scope.

“[W]hen the FBI was directed then to do that investigation as it relates to those specific allegations, was the FBI given full discretion or was the scope of the investigation limited by the direction you received from the White House?,” Harris asked.

Wray responded, “[T]he investigation was very specific in scope, limited in scope, and that that is the usual process and that my folks have assured me that the usual process was followed.”

Harris also questioned Wray on whether the FBI has investigated potential perjury by Kavanaugh during his recent testimony before the Senate Judiciary Committee. Wray did not answer and said he could not discuss the issue.

At the hearing, Harris also pressed Department of Homeland Security (DHS) Secretary Kirstjen Nielsen on her testimony that DHS does not detain immigrant children in response to earlier questioning by Senator Gary Peters (D-MI). Harris noted that a recent DHS Inspector General report confirmed children have been held in custody by Customs and Border Patrol agents for extended periods beyond what is statutorily authorized, in one instance for as long as 25 days.

“How do you reconcile the testimony you provided this committee with the report from the IG?,” asked Harris.

Despite the DHS IG report confirming instances of immigrant children held in CBP custody for extended periods, Nielsen refused to acknowledge children have been detained. 

Full transcript of Harris’ questioning:

HARRIS: Thank you. Director Wray, I want to thank you and the men and women of your agency for the work you do every day. I think I’m the only member of this committee who is also a member of the Senate Judiciary Committee and I would like to talk with you about the Kavanaugh hearings. So I want to -- I just want to be clear about how the system works. When the FBI was given the direction to do the background investigation as it related to Dr. Ford's allegations, that's an instruction that goes to the FBI from the White House, is that correct? Not from the Senate?

 

WRAY: That's correct.

 

HARRIS: And when the FBI was directed then to do that investigation as it relates to those specific allegations, was the FBI given full discretion or was the scope of the investigation limited by the direction you received from the White House?

 

WRAY: Well, Senator, I want to be a little bit careful about what I can talk about in this setting.

 

HARRIS: So I’m clear, I’m not asking you for the content of the investigation.

 

WRAY: Understood.

 

HARRIS: Just the process.

 

WRAY: Understood. There are MOUs and other things that go back a ways that govern this. But I think it's important -- I would say this, it's important to understand that the -- unlike most investigations like the sort that you and I and Senator Jones have all been familiar with, traditional criminal investigations, national security investigations, a background investigation is very different and that is done -- our only authority is as requested by the adjudicating agency.

 

HARRIS: The White House in this case.

 

WRAY: In this case, it’s the White House.

 

HARRIS: And I have a lot to cover and so if we can be as succinct as possible I’d appreciate it. I know there are a lot of details and I appreciate your point. So in this situation, was your direction limited in scope or were you given full direct -- discretion to investigate whatever your agency thought was appropriate to figure out what happened?

 

WRAY: I think I would say that our investigation here, our supplemental update to the previous background investigation, was limited in scope and that that is consistent with the standard process for such investigations going back quite a long ways.

 

HARRIS: And was -- did you receive this directive in writing?

 

WRAY: There has been lots of communication between, as is standard, between the FBI security division and the White House's office –

 

HARRIS: Was it in writing?

 

WRAY: I would expect that there would be written communications, but I can't speak to that here.

 

HARRIS: Can you find the direction and provide it to this committee? The documents?

 

WRAY: I would have to see what would be appropriate.

 

HARRIS: Okay. And who from the White House communicated the directive?

 

WRAY: Well as I said, the communication between the FBI and the White House for nominations, including judicial nominations, is through the FBI's security division which has background investigation specialists and the White House Office of Security and that's where the communication always is and I have spoken with our background investigation specialists and they have assured me that this was handled in the way that is consistent with their experience and the standard process.

 

HARRIS: Did they -- did anyone in your agency receive any direction about the scope of the investigation directly from Don McGahn?

 

WRAY: Well, I can't speak to what anybody throughout the organization might have received instructions on. My understanding is that the communications occurred between the White House's Office of Security and the FBI security division.

 

HARRIS: Do you know who determined that the FBI would not interview Judge Kavanaugh or Dr. Ford or the list of 40 plus witnesses?

 

WRAY: Again, I would say what I said at the beginning, which is as is standard, the investigation was very specific in scope, limited in scope, and that that is the usual process and that my folks have assured me that the usual process was followed.

 

HARRIS: And did the FBI look into allegations as to whether Judge Kavanaugh lied to Congress during his testimony?

 

WRAY: That's not something I can discuss here.

 

HARRIS: Thank you. Secretary Nielsen, Senator Peters during this committee hearing asked how long is too long to detain a child and you went on to testify that your agency does not detain children. However, it appears that there is some conflict then between your understanding and what the IG reported in September of 2018, when in that report which I have here, and I’m sure you've read it, there was a finding that CBP held children separated from their parents for extended periods of time in facilities intended solely for short-term detention, despite assertions by you that children were being transferred to HHS within 72 hours, as is statutorily required. For example, in the Rio Grande Valley sector, 27% of children were in CBP custody for more than five days and in the El Paso sector, 23% of children were in CBP custody for more than five days and in one case, in the Rio Grande sector, I believe a child was held in CBP custody for 25 days. How do you reconcile the testimony you provided this committee with the report from the IG?

 

NIELSEN: So I think there's two separate topics. So the one that you're describing is when we apprehend a family unit or – and what you're talking about is an unaccompanied child, we as soon as possible process that child, which means we give them initial medical screen, we ascertain if they have family members as best we can in the United States –

 

HARRIS: But Secretary, I just have a minute left. You testified that you don’t detain children.

 

NIELSEN: We do not –

 

HARRIS: The IG reports indicates that CBP --

 

NIELSEN: Yes, we do not have --

 

HARRIS: I’m not finished. The IG report indicates that CBP has detained children, and not only has CBP detained children, they’ve detained them longer for that is statutorily allowed. How do you reconcile the IG report with your testimony this morning?

 

NIELSEN: We do not detain children. What we do is when we apprehend them at a border patrol station, we process them and as soon as there is room in an HHS facility we transfer them. Because of the vast --

 

HARRIS: So does the processing involve detention?

 

NIELSEN: We -- it's not a detention facility.

 

HARRIS: Do they stay in CBP custody? Do they spend the night there?

 

NIELSEN: We are not able to, under the law, put them anywhere else so we will care for them until bed space opens at a detention facility at HHS.

 

HARRIS: In other words, you do detain children?

 

NIELSEN: In other words, we do not have enough detention facility at HHS because 10,000 children were sent here unaccompanied and their parents chose to do that.

 

HARRIS: Thank you.

 

###