Criminal charges unlikely in Kavanaugh case, legal experts say

WASHINGTON — Democrats have been calling on the FBI to investigate a woman’s claim that Supreme Court nominee Brett Kavanaugh sexually assaulted her when they were both in high school. What they’re asking for, though, isn’t a criminal investigation that could lead to charges.

Instead, they want the FBI to examine Christine Blasey Ford’s allegations, which Kavanaugh denies, to determine whether they are credible enough to cast doubt on Kavanaugh’s fitness for office.

Whatever the FBI does, the prospect of criminal charges being filed against Kavanaugh appear unlikely, legal experts say. If a crime had taken place, it would almost certainly fall under local jurisdiction, not federal. That means it would fall under the laws of Montgomery County, Md., where the statute of limitations would seem to preclude charges.

Although the FBI conducts background checks for federal nominees, the agency does not make judgments on the credibility or significance of allegations, according to a statement issued by the Justice Department. Instead, the department compiles information about the nominee’s past and provides its findings to the agency that requested the background check. In this case, that would be the White House.

There has been no suggestion that Kavanaugh may have committed a federal crime, so the FBI would not conduct a criminal investigation. But Senate Democrats are pushing for the FBI to reopen Kavanaugh’s background investigation.

Greg Rinckey, a lawyer specializing in employment law and the security clearance process, said FBI background checks aren’t meant to dig up decades-old claims that never resulted in a police report or criminal charges.

“That’s not really what the FBI is looking for,” Rinckey said. “The FBI is looking for any kind of current problem. What do I mean by current — seven to 10 years.”

The allegations Ford detailed to The Washington Post appear to be misdemeanors that would be beyond the statute of limitations under Maryland law, said Randolph Rice, a Baltimore-based attorney who specializes in sex crimes. The allegations could be interpreted as second-degree assault and a fourthdegree sex offense, Rice said. Both are misdemeanors and would be far beyond the statute of limitations, which is typically one or three years, depending on the offense.

Even if the statute of limitations weren’t an issue, investigators would have a difficult time pursuing charges because the alleged attack happened in 1982. Still, they may want to verify parts of her story by trying to interview witnesses.