Politicizing the FBI

Democrats want to turn agents into judges of nominee character.

Senate Judiciary Committee Chairman Chuck Grassley on Capitol Hill, Washington, D.C., Sept. 19.
Senate Judiciary Committee Chairman Chuck Grassley on Capitol Hill, Washington, D.C., Sept. 19. PHOTO: ANDREW HARNIK/ASSOCIATED PRESS
Democrats continue to demand an FBI investigation into Christine Blasey Ford’s allegations against Brett Kavanaugh, and on Wednesday we explained their political goal to delay a confirmation vote past Election Day. But it’s worth a moment to point out why this is also an inappropriate, even dangerous, attempt to politicize the bureau.
 
Democrats want the FBI to “investigate” an alleged assault from 35 or 36 years ago as if it were a federal crime. But the confirmation of a judicial nominee is not a criminal event. It is a political process under which the Senate has the responsibility to exercise its advice and consent power.
 
The FBI’s role is to perform a background check that provides confidential information to the White House about the character and integrity of the nominee. In a criminal probe, FBI agents offer judgments in their reports about the credibility of the people they interview. But in background investigations, or BIs as they’re called, the FBI does not provide commentary or issue judgments.

 
And thank heaven because to do so would be to turn investigators into political judges. No matter how well intentioned, agents would have to include their subjective view of the information they collected, or the credibility of the witnesses they interviewed. This would inevitably corrupt the bureau and its agents, who are unelected career employees.
 
Under the Constitution, the Senate is the ultimate judge of the fitness of a nominee appointed by the President. In this case Senators must assess whether they think Ms. Ford’s allegations are credible enough to disqualify Judge Kavanaugh. The Senate can’t abdicate that task to the FBI, much less order an executive branch agency to do its own advising and consenting.
 
Chairman Chuck Grassley has established a process under which the Senators and their staff can ask the two parties directly about the events, judge their credibility, and then decide how to vote. This is the essence of political accountability.
 
Some on the left are pointing to what they claim is the “Anita Hill precedent” because the FBI interviewed witnesses after she made her allegations against Clarence Thomas in 1991. But as Mr. Grassley pointed out Wednesday in a letter to Democrats, the FBI did that when Ms. Hill’s allegations were still private. Judiciary Chairman Joe Biden promptly notified the White House, which directed the FBI to conduct a handful of interviews within a few days. After Ms. Hill’s charges leaked, Mr. Biden reopened a hearing within five days.
 
“We are in the same position the Committee was in after Professor Hill’s allegations were leaked,” writes Mr. Grassley. “After that leak, we did not ask the FBI to conduct an investigation. Instead, we reopened the hearing and assessed the testimony that was given on our own. As in 1991, it is now up to the Senate to gather and assess the relevant evidence.”
 
Republicans have offered Ms. Ford a fair process and forum, public or private, for her to be heard. Democrats have already done enough harm to the Senate’s confirmation process without also politicizing the FBI.
 
Appeared in the September 20, 2018, print edition.

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