October 23, 2018

The Inherent Limitations of the Kavanaugh Probe

“AS THE FBI explores whether Supreme Court nominee Brett Kavanaugh sexually assaulted women while in high school and college, elected officials and others have suggested that federal agents can authoritatively get to the bottom of an alleged attack said to have occurred three decades ago.

The FBI’s only impediment, these people allege, is possible meddling by the White House to limit the investigation’s scope. Arizona Sen. Jeff Flake, a Republican whose last-minute show of leverage forced the new FBI inquiry, has told the White House and the FBI that he expects “a fulsome” investigation. Newspaper editorial boards have warned that the Trump administration’s interference in the investigation would taint the FBI’s findings.

“FBI agents are experts at interviewing people and quickly dispatching leads to their colleagues around the world to follow with additional interviews,” former FBI Director James Comey assured Americans in a New York Times op-ed. “Unless limited in some way by the Trump administration, they can speak to scores of people in a few days, if necessary.”

But these arguments leave out the inherent limitations of FBI investigations in cases such as this.

The FBI agents probing whether Kavanaugh sexually assaulted Christine Blasey Ford when they were both in high school lack something that most serious government investigations require: subpoena power.

Unlike agents tasked with investigating a crime, the FBI must rely on witnesses to cooperate voluntarily with its investigation. A possible witness approached by the FBI may simply slam the door in agents’ faces with no repercussions. At any time, witnesses who choose to cooperate can refuse to answer a specific question, and they won’t have to provide any explanation for their refusal.”

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