Law & the Courts

Democrats’ Complaints about the FBI Investigation Are Absurd

Democrats on the Senate Judiciary Committee, September 28, 2018. Front row (from left): Amy Klobuchar (D, Minn.), Chris Coons (D, Del.); (back row): Cory Booker (D, N.J.), Kamala Harris (D, Calif.), and Richard Blumenthal (D, Conn.) (Jim Bourg/Reuters)
It’s unnecessary to begin with, and is not a criminal probe.

The Delay, Delay, Delay strategy to stop Judge Brett Kavanaugh’s appointment to the Supreme Court is taking the predictable course. Once they got Republicans to agree to the one-week delay, Democrats immediately started complaining that the time limit was arbitrary — that the FBI should have whatever time is necessary “to get the job done.”

Therein lies the issue, which Democrats have obfuscated from the start. “The job” is not the FBI’s job, it is the Senate’s; and the job is not to conduct a criminal investigation, it is to develop enough information that the Senate can responsibly exercise its constitutional advice-and-consent duty.

Thus understood, “the job” is already done. The Senate has more information about this nominee than it has had about any judicial nominee in history. It has vetted him before, approving his nomination to the prestigious D.C. Circuit Court of Appeals. In the ensuing dozen years, Kavanaugh has issued hundreds of opinions, many of which are influential in the Supreme Court and the lower courts. He has, moreover, interacted with colleagues and litigants who give him high grades for collegiality and temperament. He has hired and mentored an impressive and diverse stable of law clerks, who think the world of him and are coveted for distinguished positions in the legal profession, including Supreme Court clerkships.

Furthermore, this nomination is the occasion for the seventh FBI background check of Kavanaugh’s career. The number is high because he has held positions of high responsibility, including national-security duties. Consequently, he has been carefully examined and found fit for access to the nation’s most closely held defense secrets.

Beyond that, Kavanaugh attended private meetings with 65 senators, gave 31 hours of testimony at the initial round of hearings, and responded to over 1,200 written questions — more post-hearing questions than all prior Supreme Court nominees combined. When Christine Blasey Ford’s uncorroborated, highly dubious claim of a 36-year-old sexual assault arose, he provided hours more of compelling testimony, denying the allegations and masterfully marshaling the evidence that demonstrates the incredibility of Ford’s allegation.

There is already more information than is needed — mountains more — for the Senate to vote.

What is arbitrary is not the time limit on the FBI investigation. It is the suggestion that the task at hand is the FBI’s, and that the bureau must “complete its investigation” as if a criminal probe were underway. No matter how many witnesses it interviews, the FBI is not going to make a judgment about Kavanaugh’s fitness. That is the Senate’s task; for the FBI to do it would usurp the Senate’s constitutional role.

The caprice here is the Democratic pretense that more investigation is required. The Democrats’ demand, while disingenuous, is completely rational — they are trying to delay the vote until after the midterms, in hopes that they win a Senate majority, which would doom Kavanaugh’s nomination. Therefore, they push for anything that accomplishes any delay, especially if it sets up opportunities to push for more delay. On that score, a reopened background check is perfect: In essence, it is an information-gathering exercise, and there will never be enough information to satisfy the Delay Democrats; there will always be more areas to explore, more witnesses to question, more yearbooks to probe, more college beer parties to examine.

What is not as clear is why some Republicans indulge the delay and call for more investigation — other than that they are intimidated, fearing that the media and the Left’s more strident voices will say mean things about them.

One red herring that has gotten attention is the claim that the FBI has failed to interview Ford. To be sure, I have been hoping the FBI would interview her simply because omitting to do so would surely result in more Democratic calls for delay. But that said, an interview would be duplicative. Ford has already given hours of sworn testimony before the decision-making body, the Senate. If the FBI interviewed Ford, it would just do what the Senate has already done — ask her questions (no doubt, the same questions). Because the FBI is not conducting a criminal investigation and is not making judgments about wrongdoing or credibility, it would simply give the Senate its interview summary. Ordinarily, the interview summary would flag issues, which could alert the Senate that this is a witness worth summoning for testimony. But here, the Senate already has Ford’s testimony.

Critics also suggest there are a couple dozen other witnesses that the FBI must interview because they purportedly have relevant knowledge, in particular about the claim by Kavanaugh’s Yale classmate, Deborah Ramirez, that he exposed himself to her at a party. Ramirez, who was drinking heavily at the time, has acknowledged uncertainty about what happened and whether Kavanaugh actually did what she has accused him of. To date, no eyewitness has corroborated her allegation, which Kavanaugh vigorously denies.

Kavanaugh and his supporters appear to have been working behind the scenes to refute Ramirez’s claim before it became public. This has led some to assert, absurdly, that Kavanaugh gave false testimony when he told the Judiciary Committee that he found out about Ramirez’s claim through the story about it in The New Yorker. But clearly Kavanaugh was referring to The New Yorker’s process of researching the story, not the story’s publication; after all, he is quoted in the story denying the allegation.

Others complain that Kavanaugh publicly criticized Ramirez for calling around to former classmates about the alleged incident, even though he did so himself. The two things, however, are saliently different: Ramirez was calling around because she clearly has trouble remembering the incident about which she leveled a very serious accusation; she was hoping classmates would jog her alcohol-fogged memory. Kavanaugh, to the contrary, says he is certain it did not happen and was apparently encouraging people to defend him publicly.

Seems like much ado about nothing. None of it bears on whether anyone can back up Ramirez’s claim with direct knowledge. If there were a witness who claimed to have seen Kavanaugh do what’s alleged, or a witness who claimed to have heard Kavanaugh admit that he had done it, there is no reason to believe the FBI would not interview such a witness. That would be pertinent information. But it is not necessary to interview the dozens of people who may have information that is attenuated and that tracks what the FBI has already heard.

Finally, to reiterate, this is the Senate’s job, not the FBI’s. The FBI is going to give a report to the Senate as an aid. The report will provide summaries of what witnesses have said in interviews. If, upon reviewing it, enough of the senators needed to confirm Kavanaugh were to indicate that they will not vote in the nominee’s favor unless and until certain witnesses are interviewed, Majority Leader Mitch McConnell would have no choice. Assuming he wanted to press ahead, he would have to invite those people to testify or ask the FBI to interview them.

But that should not happen. There is more than enough information about Judge Kavanaugh for the Senate to vote on his nomination. And Democrats certainly do not need more information. They have already decided to vote against the nominee. They just want delay.

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