What to expect from the Kavanaugh FBI investigation

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What can we expect from the F.B.I. investigation into the background of Judge Brett Kavanaugh ordered by President Trump at the request of the Senate Judiciary Committee? Let’s start with what is a federal background investigation and what is its purpose. A background investigation gathers information about a prospective candidate for a federal job in order to assess if they will be worthy of the trust placed on them. The investigation typically is conducted by F.B.I. agents or contractors (often retired agents), who primarily gather the information through interviews with the candidate, persons the candidates identifies, and other witnesses identified during the investigation.

A background investigation differs from a criminal investigation primarily in two ways. First, it is not commenced based on a suspicion that a crime may have been committed. Second, no prosecutor is involved in the investigation and therefore no one convenes a grand jury with the power to subpoena persons or documents.

{mosads}In Judge Kavanaugh’s case, the initial background check already was conducted but has now been re-opened due to concerns over allegations of sexual misconduct, including the possible sexual assault of Dr. Christine Blasey Ford. So in this case the background investigation will obviously concern conduct that is potentially criminal and will concern allegations of sexual assault. That does not mean it is a criminal investigation into possible sexual assault. Rather, it is a background investigation that will encompass allegations of criminal sexual assault. Here it is useful to dispel some misconceptions circulating on social media.

First, the F.B.I. does investigate sexual assaults. F.B.I. agents investigate sexual assaults all the time. Some agents specialize in investigating sexual assaults (ever watched an episode of the TV show “Criminal Minds”?) and specific jurisdiction over such investigations is set forth on the F.B.I.’s own website.

Second, the F.B.I. does assess credibility. While it is true that the agents do not make the sorts of final determinations of credibility made by a prosecutor or jury, F.B.I. agents, like any other investigators, make credibility determinations all the time.  When I was a prosecutor, I frequently asked for and received assessments of truthfulness, credibility and reliability of witnesses from F.B.I. agents working with me on investigations. Indeed, any investigator who cannot and does not assess credibility makes a very poor investigator since the very flow of questioning requires constant assessments of a witness’s credibility. Saying the F.B.I. does not assess credibility is like saying chefs never taste their food. You wouldn’t want a chef who never tastes their food and you wouldn’t want an agent who never assesses credibility.

So here is what the re-opened F.B.I. background investigation into Judge Kavanaugh should include at a minimum:

  1. Interviewing witnesses identified and yet to be identified about Judge Kavanaugh’s behavior with regards to women. These could include Ford, Debra Ramirez and Judith Swednick all of whom have alleged sexual misconduct by Judge Kavanaugh. Their interviews will likely identify other persons to be interviewed that can corroborate various details of the alleged misconduct.
  2. Interviewing Mark Judge, the person alleged by Ford to have been in the room at the time of the alleged assault. Given that Judge may have aided and abetted in the alleged assault he may have a Fifth Amendment concern over being interviewed.
  3. Interviewing witnesses to Judge Kavanaugh’s drinking habits in high school and college. Alcohol or other substance abuse issues would have been covered in the initial background investigation, but numerous witnesses have now surfaced regarding possible alcohol abuse by Judge Kavanaugh and he himself has put focus on the issue through his various statements during his testimony.

The results of these interviews typically will be memorialized in forms known as 302s, which are simply formal summaries of an investigator’s notes. These summaries as well as any verbal reporting that may be deemed relevant will be made available to the White House. It is unclear how much of the investigation will automatically be made available to the Senate Judiciary Committee or full Senate.  But I believe that based on the information in this re-opened background investigation the first decision to be made will rest with the White House. Specifically, at that point, the president and his advisors must determine whether they still wish to recommend Judge Kavanaugh to the Senate.

Shan Wu is a former federal prosecutor who served as counsel to Attorney General Janet Reno. As a sex crimes prosecutor, he also co-prosecuted the first life-without-parole conviction of a serial rapist in Washington, D.C. @ShanlonWu

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