The call for another FBI investigation, which dominated the Sept. 27 hearing about Dr. Christine Blasey Ford’s sexual assault allegation against Kavanaugh, appears to have multiple partisan objectives, based on statements made by those opposed to his confirmation.
First, Kavanaugh’s opponents have expressed hope that the continued controversy will help defeat the nomination. Barring that, they have indicated that they want to drag the process out at least past Election Day. Third, according to Sen. Mazie Hirono, D-Hawaii, Democrats would keep this seat open until President Donald Trump leaves office if they win control of the Senate in the upcoming election.
This demand for another FBI investigation is not valid and based on a complete misunderstanding of the bureau’s role. First, Kavanaugh’s opponents want people to think that the FBI is on standby, ready to run down all the leads and figure out what really happened.
That may be what a law enforcement agency does in the criminal justice system—as seen on TV—but not in the confirmation process.
That distinction between the criminal justice system and the confirmation process is critical. The FBI is in the executive branch, which has authority over the criminal justice system. The confirmation process, however, occurs in the legislative branch. The Constitution gives the Senate sole responsibility for evaluating presidential nominees.
In the criminal justice system, the FBI investigates by not only gathering information but evaluating it, making judgments about the credibility of witnesses or the truth of what they say, pursuing leads, and offering conclusions or even recommendations. In other words, they figure out what really happened.
In the confirmation process, the FBI gathers information and stops there. The Senate must do the rest. In fact, as CBS News recently described it, the FBI “conducts a background check at the request of the White House, mainly to determine whether the nominee would pose a risk to national security interests of the United States, according to the Justice Department.”
That has already been done. It’s worth noting that this “full-field” FBI investigation has been conducted every time Kavanaugh was hired or appointed to a significant government position. Six times between 1993 and 2018, the FBI went talking to people about Kavanaugh. Six times, all after the incident that Ford alleges, the FBI never heard anyone even whisper a word about sexual misconduct.
Kavanaugh’s opponents not only want people to think that the FBI has a criminal justice role in the confirmation process, but they mislead people to think that if the FBI does not jump in, there will be no investigation of Ford’s allegation. The people actually responsible for investigating these allegations are the Judiciary Committee’s own investigative staff and they have been hard at work for nearly two weeks. The list of steps they have taken is...
