Why FBI's Kavanaugh investigation wasn’t really an investigation

A former FBI agent walks us through what an investigation into the Kavanaugh probably entails.
October 4, 2018, 2:49pm

The FBI’s expanded investigation into 36-year-old sexual assault allegations against Judge Brett Kavanaugh is now in the hands of the Senate. The report is locked in a secure reading room, available only to senators and a few key aides, and exists only on a single paper copy.

That might seem odd, but it’s actually normal practice for background checks — and for people hoping for a final verdict on the Kavanaugh allegations, that’s the heart of the problem.

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Experts in FBI background investigations told VICE News this week that the reopened investigation was always likely to disappoint the general public. That’s because it’s a reopened background investigation at a time when many people are hoping for a criminal investigation.

There's a big difference. Unlike a criminal investigation, agents don't have subpoena powers or the ability to obtain search warrants. That means investigators are free to interview whomever they can, but have no way to force them to cough up information or papers if they decline.

Tom Baker, a former FBI special agent who conducted background checks during his time on the job, told VICE News the high-profile nature of the charges means this could be a big problem.

“There's a possibility that some parties may want to even have their lawyer present, and the agents I know doing the investigation won't like that,” Baker says. “That's unusual in a background investigation.”

It also means a “finished” report in a background investigation doesn’t have to draw any conclusions. It’s only designed to raise red flags that are meant to help the White House, and Senate confirmers, make their own choices.

It’s possible the new report will include new information that wasn't previously known. But it’s just as likely by the end of the week we’ll be exactly where we were last Friday.

“I don't think we'll get closure in this kind of thing for a long, long time,” Baker says.

This segment originally aired October 1, 2018 on VICE News Tonight on HBO.