Don’t tie FBI’s hands on Kavanaugh probe

Will investigation be real or a fig leaf for the GOP?

Finally, the FBI is on the case. The Senate Judiciary Committee said Friday the agency would look into “current credible allegations” against Supreme Court nominee Brett Kavanaugh. President Donald Trump quickly responded with: “I’ve ordered the FBI to conduct a supplemental investigation to update Judge Kavanaugh’s file. As the Senate has requested, this update must be limited in scope and completed in less than one week.”

On its face, this turn of events calls for applause. However, that will depend on what is meant by “limited in scope” and “current credible allegations.” The battle has already begun.

As a former federal prosecutor who worked with the FBI for 25 years, I know that the scope of an FBI investigation directly impacts its value. If you limit an FBI agent’s job to bringing you a specific phone record, he will do just that, even if it was sitting next to other records that shed light on the whereabouts of Jimmy Hoffa’s body.

So to what extent will the White House and Judiciary Committee allow the FBI to investigate allegations of sexual misconduct made by women other than Christine Blasey Ford? What about credibility questions raised by Kavanaugh’s denials of his hard-drinking college days?

There are serious concerns about Kavanaugh’s truthfulness. A Mother Jones article details five occasions on which Kavanaugh “appears to have lied to Congress while under oath.” These include testimony relating to stolen documents, warrantless wiretapping, torture and the nomination of two federal judges. The FBI should investigate these instances of possible perjury.

The first thing the FBI needs to do is interview Mark Judge. According to Ford, Judge was an eyewitness to Ford’s alleged assault at the hands of Kavanaugh. Though Judge told the Judiciary Committee he has no memory of the assault she described, an FBI warning that includes the phrase “under penalty of perjury” often has the ef- fect of shaking free memories from a reluctant witness.

In response to the newly authorized FBI investigation, Judge’s attorney on Friday stated, on his behalf: “I will cooperate with any law enforcement agency that is assigned to confidentially investigate these allegations.” If Judge’s willingness to speak with the FBI is contingent on the FBI never reporting what he said to the Judiciary Committee, he should be subpoenaed to testify before the committee directly.

One last point on Judge. The FBI should ask him to take a polygraph. If he was in the room when his friend Kavanaugh sexually assaulted Ford, as she says, a polygraph will help the FBI determine whether he cannot remember or whether he chooses not to.

The FBI should also offer one to Ford, even though she took and passed a private test, to ensure the accuracy of the results. And a polygraph should be offered to Kavanaugh. These tests serve an important investigative function and are often used by federal law enforcement agencies with great success.

My fear about the newly authorized FBI investigation is that Republicans will limit its scope so narrowly that the FBI will not be given the opportunity to fully investigate issues that have arisen in Kavanaugh’s nomination process. An investigation in which the FBI has its hands tied is potentially worse than no investigation at all.

With no investigation, we would understand Kavanaugh’s ascension to the Supreme Court to be the raw exercise of political power we have seen thus far from the Republican-led Senate Judiciary Committee.

An FBI investigation in which the investigators are disabled at the outset leaves open the possibility of a report that has a veneer of substance but is only skin-deep. That would fail to bring justice to the Supreme Court confirmation process and simultaneously give Republicans shelter from what many believe to be a political storm that threatens their grip on Washington.

Both parties need to let the FBI investigate with the singular mission to do what it does best — find the truth.

Michael J. Stern was a federal prosecutor in Detroit and Los Angeles.