About FBI Investigations

Updated Sept. 30.

This is a non-partisan essay about the status of the nomination of Judge Brett Kavanaugh (BK henceforth), focusing narrowly upon the renewed FBI investigation.

I am writing this because I have some familiarity with such investigations. I was investigated a number of times during my military career regarding security clearances (the checks for top secret were extremely thorough) and regarding my clearances for nuclear-weapons operations. The FBI did not do them because DOD had the assets to do them itself. But the procedures are are same.

Logo of the Federal Bureau of Investigation, somewhat stylized

I checked this essay in draft with special agents of US Army Criminal Investigation Command (CID), where I served as my final assignment in the Army. I was not an investigator, however, which is why I ran this through federal law-enforcement agents who actually performed such investigations.

These investigations are usually known as "vetting" or "background" investigations. For most non-DOD civil service, they are carried out by the Office of Personnel Management and frequently then by contracted private companies. However, the FBI conducts them for White House appointees and usually for certain Senate or House staff members.

Key point: Key fact: Background investigations are NOT criminal investigations. The FBI receives and reports information relative to the subject's fitness for office or clearance or whatever reason it was requested. That is all it does.

Hence, the FBI collects information and provides a report with statements and summaries and provides it to the requester, in Kavanaugh's case, the White House. An retired special agent who conducted such investigations told me,

An FBI BI [background investigation] is conducted by fully qualified [active] and retired criminal investigators who have many years experience conducting investigations. It is the investigator's job to identify disqualifying information and immediately report that information to BICS, the FBI unit responsible for BIs. They then make the determination on what action takes place next. 

This agent went on to explain that the vast majority of BI investigations are conducted by retired special agents, although, "BIs of people holding or nominated for certain very high positions are conducted by active FBI agents." Also, the BI is not a rubber-stamp operation; it is substantive and inquiring. Having endured them myself, I can attest they are not casual or "by the numbers" at all. However, the final decision of qualification or disqualification does not rest with the FBI. It is the responsibility of the requesting agency.

In this case, Senator Diane Feinstein sent a copy of Christine Ford's letter to the FBI. The FBI took the proper step of turning it over to the White House for their consideration regarding Kavanaugh's nomination. Job done, as far as the FBI is concerned.

That is why this renewed FBI "investigation" is (at best) misguided. There is no investigation left for the FBI to do, and people who think there is do not understand how such investigations are conducted and what happens at the end.

In background investigations, all the FBI does is take statements. It does not grill witnesses, it does not pick statements apart and try to find "the truth" or "what really happened." The FBI, one of the world's premier detective agencies, actually does not do any detective work in background investigations. It simply takes statements and passes them on to the requesting agency for their review and assessment. As Joe Biden said in 1991, the FBI does not draw conclusions in these investigations. The FBI report at the end of this week will not say, "Ford is lying" or "Kavanaugh is lying." Neither will it say, "Kavanaugh did what Ford alleges" nor "Kavanaugh did not do what Ford alleges."

What it will say is that these persons say this, these persons say that, and these persons say the other thing. The FBI will not determine who is telling the truth or not. What it will do is present the White House yet again with a sheaf of papers of statements and walk away. Only is there is a truly serious allegation related to the FBI does it get further review inside the FBI, as one the special agents explained to me. But the "serious allegation" is already out there, so what's left?

I will leave the last word on the investigation to retired Special Agent Johnny T., who told me,

I did FBI Backgrounds for FBI for 16-17 yrs and you're absolutely correct.... FBI would have nothing to investigate plus no Federal Crime....

Again: This is not a criminal investigation. Ford has never made any criminal complaint to any law enforcement agency. If she really does want an investigation, all she has to do is contact the police department of the Maryland municipality concerned and swear the complaint.

As a matter of criminal law, the FBI has no jurisdiction anyway because the allegations do not fall under federal purview. If there is a statutory violation, it is of the laws of law of Maryland. The FBI investigates only offenses against federal laws and does not itself decide whether to prosecute. That is the decision of the US Attorney's office. As one agent told me, with no statutory federal violation at hand, the chance of a US attorney directing a FBI criminal investigation is extremely remote for this (or any other incident). No one from the Maryland attorney general's office has even identified what Maryland law(s) might have been violated, but then, they wouldn't do so because Ford has not made a criminal complaint to them.

Bottom line: There is literally nothing else for the FBI to do here. This week-long renewed "investigation" is starting now because the US Senate is so dysfunctional that it hopes the FBI will pull it out of a hole that it dug itself.

Here is then-Senator Joe Biden in 1991, referring to calls for an FBI investigation of claims made by Anita Hill against SCOTUS nominee Clarence Thomas.