The Corner

Law & the Courts

The FBI Inquiry Represents Yet More Congressional Delegation

As was wholly predictable — and predicted — we are now witnessing a PR battle over the FBI investigation that Jeff Flake has made the price of his vote for Brett Kavanaugh. In fact, no sooner had the Democrats convinced Flake to give them their investigation than they had started questioning its legitimacy. Some of the objections have been structural: “It’s too cramped!” “It’s too short!” Others have been foundational: “The FBI works for Trump,” it has been noted, “therefore any investigation will be corrupt!” Unless something changes, these criticisms will hang over the findings long after the floor vote has been held.

I have a criticism of my own, in the form of question: “Why is the FBI involved at all?”

Yes, yes, I know: While the FBI has no jurisdiction over alleged state crimes it does play a role in vetting federal nominees. But that fact militates only in favor of the FBI’s being available to help if needed. It does not tell us that it should be used, and nor does it make the case for the legislative branch’s decision to give up even more of its power to the president. Constitutionally, it is the Senate, not the executive branch, that is supposed to deal with these matters, which is one reason that the Senate enjoys a whole array of investigative powers — up to, and including, the capacity to subpoena witnesses and to take testimony under threat of penalty. Why isn’t it doing so?

Given that Jeff Flake has made it perfectly clear that he will block the nomination absent a further investigation, the answer cannot be that the Democrats lack the votes or the power to request a deeper probe. The executive branch, to which the FBI belongs, is wholly independent of Congress — that is, it cannot legally be instructed to open an investigation by the Senate — and yet Flake’s demand was sufficient to (1) convince it to acquiesce, and (2) to convince it to do so expansively. So what it is? What is so magical about the FBI? It is the Senate that will have to make a decision here, not the FBI. In fact, making a decision is the one thing that FBI can’t do.

Whatever has led us to this place, it has produced a farcical spectacle. Alternately, the Democratic party insists that the FBI must investigate, and that only it can resolve this matter and that the FBI cannot do its job fairly under Trump, and that the Senate has no power to force it to. Eventually — eventually — the people in Congress will realize that their behavior, not electing the right president, is the key to the restoration of their power.

 

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