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The Senate, Not the FBI, Should Investigate Kavanaugh

Instead of surrendering another core function of Congress to the executive branch.

The Senate Judiciary Committee, not the FBI, should investigate the sexual assault allegations against Supreme Court nominee Judge Brett Kavanaugh. The current FBI investigation compromises the independent advise and consent role of the Senate under the Appointments Clause of the Constitution.

The FBI is saddled with an institutional conflict of interest in investigating these allegations. FBI Director Christopher Wray serves at the pleasure of President Trump. The White House stipulates the terms of the investigation. That means Trump is currently investigating his own nominee in violation of the precept that no person can be a judge in his own case. Justice, like Caesar’s wife, should be above suspicion.

A Senate Judiciary Committee investigation of the Kavanaugh allegations would avoid the FBI’s institutional conflict of interest. The committee’s constitutional role is not supposed to be cheerleader for the nominee, but independent evaluator of his fitness for the Supreme Court, including temperament, truthfulness, and character. (Witness Associate Justice Abe Fortas, who resigned in 1969 for accepting financial payments from convicted stock swindler Louis Wolfson and the Wolfson Foundation.)

Majority and minority staff should participate in all witness interviews and document reviews to prevent investigatory bias. Key witnesses should be subpoenaed to testify publicly before the committee, as have Christine Blasey Ford and Kavanaugh. Body language and tone are worth a thousand words. And public testimony would provide a window through which voters can view committee members, as well as a needed civics lesson. Senator Jeff Flake can insist that the committee majority pursue a thorough, impartial, and public investigation of the allegations at the risk of losing his vote in favor of Kavanaugh on the Senate floor.

There is no need to rush. The Supreme Court operated satisfactorily with eight justices as Barack Obama’s nomination of Merrick Garland hung in suspended animation for 293 days. Even if Democrats capture control of the Senate in November, the current Republican majority would have ample time to vote on Kavanaugh’s nomination during the lame duck session. Just as in journalism, it is more important to get it right than to publish first. And when voting on Supreme Court nominees, it is more important for the Senate to be fully informed than to act quickly.

The Senate Judiciary Committee’s investigation of the Kavanaugh allegations with congressional staff would be no novelty. The Senate Watergate Committee, the Church Committee, and the Joint Congressional Committee on Covert Arms Sales to Iran investigated executive branch wrongdoing with committee staff.

Furthermore, the congressional power of investigation was acknowledged by the Supreme Court as far back as Anderson v. Dunn in 1821. It should be used by the Judiciary Committee, not surrendered to the FBI.

Bruce Fein was associate deputy attorney general and general counsel of the Federal Communications Commission under President Reagan and counsel to the Joint Congressional Committee on Covert Arms Sales to Iran. He is a partner in the law firm of Fein & DelValle PLLC.



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