It seems you are assuming that “once they paid the penalty” they are rehabilitated.
To be clear, I am not saying never hire someone with a criminal record. I am saying that evidence is part of a moral, rational assessment. If someone shoplifted from a candy store once a month, paid the fine, and did it again every month, they “paid the penalty”. I would not hire them in my candy store, and would not say that I am discriminating, or responsible for recidivism.
I may hire them to work at a landscaping company, or construction work, or drive a forklift.
If they had shoplifted 10 years ago and were truly rehabilitated, I would not hesitate to hire them.
But knowing their criminal record, if any, can be important in a hiring decision. Do you deny that in some situations, even for misdemeanors, it can be important? If you acknowledge that fact, then we are in agreement.
Except law enforcement only has the power to investigate someone when an allegation has been made that the person has committed a criminal offence within that law enforcement officer’s jurisdiction. So far as I know, there has not been any allegation that Kavanaugh committed any federal offence. An allegation of rape at a party is a state offence. The FBI therefore doesn’t have any compulsory powers under federal law. They’re not much different than a journalist. They could probably check for a criminal record or a restraining order, since those are matters of public record. But investigating to see if someone owes money to the mob? The FBI has to have some sort of probable cause to get a warrant to investigate financial records. Owing money to a mobster is not itself a criminal offence.
What is the federal criminal offence that is being alleged here, which would give the FBI jurisdiction, and which would support probable cause for warrants?
Can the FBI require someone to take a polygraph, absent probable cause to believe a federal offence has been committed? Can they compel anyone to talk to them, absent probable cause a federal offence has been committed?
The FBI was involved because the President authorised them to conduct a background check to assist the Senate to carry out its duty to decide whether to confirm or reject the nomination. That is now past; the Senate decided to confirm.
The FBI does not have a general roving mandate to investigate people. It only has that power when carrying out a specific power, such as assisting the Senate in exercising its constitutional powers, or in investigating an allegation of a federal crime. Neither of those conditions is met here.
In my opinion, it a profoundly moral restriction on the FBI: agents of the Government must have limited powers, because it is immoral for the Government to be able to investigate citizens without a clearly defined legal basis. The Government has tremendous powers. Those powers must be restrained by law. Absent a clear legislative function, or probable cause to believe a federal crime has been committed, the FBI has no power to compel others to participate in an investigation.
There can of course be an investigation of the FBI itself, to inquire into whether it properly carried out its duties when assisting the Senate in its constitutional function. But that cannot be allowed to morph into an investigation of Kavanaugh, absent reasonable basis to believe he’s committed a federal offence.
That is the standard line used by authoritarian regimes such as the Nazis and the Stalinists to justify broad state powers to investigate citizens, without probable cause. It has no role in a a country governed by constitutionalism and the rule of law.
You are correct. There is no grounds for a warrant. No criminal offense is being alleged here. I never said there was, so I am not sure why you bring that up.
It is possible that the FBI already has information on a subject of a background investigation, as a result of other investigations. I think it can be argued that such information should be provided to the Senate, if only confidentially. We are now speaking generally, so I am not claiming this would apply to Kavanaugh.
While criminal investigations and restraining orders may be public in some jurisdictions, I do not think a readily available database is accessible to the public. So sure, a journalist could call 92 different jurisdictions and maybe wait for an FOIA, or the FBI could do it in an hour.
As has been discussed in painful detail, that is correct.
However, a botched investigation is an investigation that has not been carried out.
This is not a criminal trial where double jeopardy applies. This is for all intents and purposes a job interview.
You are hiring someone. In the process of hiring them, you find out there are some allegations. You get a background check, and it comes up clean. You later find out the the background check was done by a friend of the employee, and they left some things out. Are you claiming that you have no right to redo the background check with a different company, even though the employee is hired?
Please do not pretend that there is some magic distinction because the Constitution is involved. A person is vetted for a job. That person can be removed from the job. If false information may have been provided in the vetting, that vetting should be repeated. Not expanded, not done annually, just done once, properly.
The obvious effect of preventing such correction has been made clear above. Just get the investigators to leave something out, and you can get away with it. Since it is not a criminal case, there is no crime. But the clear incentive is there to hide the truth.
I’m not sure anyone is advocating it morph into anything other than what it was supposed to have been originally. If in inquiry into the quality of the investigation shows it was sufficient, we are done. If it shows it was deficient, simply do it right, the way it was supposed to be, the way it was authorized to be but never achieved. No new, harsh, criminal-like investigation. That is a straw man.
I know others have said it, but it bears repeating:
The FBI wasn’t investigating Kavanaugh for a criminal referral. There was no possible outcome that would have resulted in a criminal prosecution. The statue of limitations, coupled with the lack of federal jurisdiction, meant that this was never a criminal investigation. Regardless of whether Kavanaugh committed a crime against Ford, the act of the FBI was never about deciding whether he would “get away with it”, since they could have concluded that it was true and yet no further legal action would have been taken.
Again, I realize that I am rehashing points already made, but appointing somebody to the Supreme Court is not at all what you are describing. Kavanaugh can’t simply be fired (and, given the votes required for impeachment, he won’t be convicted and removed from office, either). And there’s no definitive evidence that could possibly be discovered that would make it 100% irrefutable that some sort of sexual assault occurred (at best, they’d identify other people - maybe witnesses, maybe victims - who would be discounted just as Ford was: axes to grind, faulty memories, overly sensitive, etc.).
And your analogy is off - Kavanaugh didn’t “come up clean”; the accusation was fully and openly discussed. This would be like the background check you described coming up with an allegation of getting into a fight as a youth, but never managed to confirm the charge, which was never formally pursued, anyway. Sure, another background check might have come up with something more definitive, but it’s not like the people who were doing the hiring didn’t have an inkling that this was a possibility - plainly, a majority simply didn’t care.
That is a distinction without a difference. He can be removed. That is the point. What you call it is irrelevant.
Again, irrelevant. Sentencing to death does not require 100% irrefutable evidence, never mind impeachment.
The point remains. If there is an investigation before a decision to put someone in a position of authority (hiring or confirmation, call it what you will) that was done incorrectly, and there is the possibility of removing the person from that position (firing or impeachment, call it what you will) then it is reasonable to have the investigation conducted properly and determine next steps.
Do you deny that such a course of action in and of itself is reasonable, in a general situation?
What about the Kavanaugh situation is different, other than the words used to describe putting someone in a position or removing them? Or perhaps that it is the Senate that decides on removing them according to the Constitution, as opposed to a Board of Directors according to corporate bylaws?
Impeachment is not simply removal by another name. It is a political process requiring a supermajority in the United States senate, with all of the political ramifications that entails.
Well, there you go. It is not possible to have him removed by impeachment: not practically, anyway. There are enough senators who are aware of the accusations and have decided that - even if the are true - they don’t warrant keeping him off the high court. That’s why this renewed investigation becomes unreasonable, in my opinion.
If there is a reasonable possibility of actual removal, I don’t. In your board of directors analogy, though, I think this is akin to one board member clamoring for a new investigation even though the topic of inquiry was already broached and discarded by a majority of the members.
That’s largely it. The practical reality of the senate’s impeachment process means that Kavanaugh is not going to be removed. But, as I said above, a board of directors that was similarly aligned, vote wise, would also not benefit from this type of re-investigation.
With that in mind, I think a more salient question is what does this new investigation really hope to accomplish? Is it truly conversion of the Republican caucus? Or something else?
No one can require anyone to take a polygraph, altho for some weird reason a couple of Federal jobs if you dont take one you could be fired. (So for a certain definition of “require” that is required, sine "comply or get fired is a armtwist)
But certainly not for suspected criminals etc. Polygraphs are 90% bogus anyway.
If you are a federal Employee you do have to answer questions or possibly get fired.
If you are in a sensitive position or have a clearance, you may be subjected to a polygraph examination and other questioning pursuant to your background. The FBI can’t force a federal employee to cooperate with a “background investigation” of a third party, or force anyone, federal employee or not, to undergo a polygraph examination as part of someone else’s background investigation.
But the basic point stands for the purposes of this thread: all the talk of the FBI being able to conduct an LEO investigation is incorrect. If they do not have grounds to believe a federal offence has been committed, which no-one has suggested with respect to Kavanaugh, they don’t have LEO powers to conduct an investigation. They can poke around a bit, but their powers are limited.
Since it wouldn’t be a criminal investigation, the FBI wouldn’t have any way to compel or induce cooperation. No subpoenas, warrants, or court orders. No threats of obstruction of justice charges. No plea deals, promises to put in a good word with the prosecutor and treat someone as a cooperating witness, no threats to tell the prosecutor that someone has been an uncooperative witness.
But even beyond that, the FBI wouldn’t even have the normal powers it would have to conduct a background check. Background checks normally involve, indeed require, the active cooperation of the subject. They are required to make themselves available for interviews, under oath. And, crucially, the subject is normally required to sign broad waivers granting the investigators unfettered access to their legal, financial, medical, and other pertinent records, documents, and information. If Kavanaugh refused to cooperate with a “re-do” (and why would he cooperate?), the FBI wouldn’t even have the resources and means it normally has for background checks.
With all respect for the careful arguments presented in this thread: there are two areas of inquiry not yet discussed at length:
Senator Whitehouse’s letter notes specific problems with the FBI action–the week-long ‘background check’ into the Blasey Ford accusations–and the generalizations about whether or not it’s appropriate to revisit investigation of Kavanaugh aren’t really relevant to those specific problems. (All three are discussed in the Guardian article linking in the OP.) For example, the question of why FBI head Christopher Wray never answered questions from Congress members about the investigation, deserves examination. No platitudes about Kavanaugh’s confirmation being a done deal can excuse Wray’s failure to respond to reasonable questions from Congress.
Whitehouse, so far, is talking just about the actual FBI action, which concerned only the charges of sexual misconduct against Kavanaugh. But there is an entire body of questions about Kavanaugh’s finances that received very short shrift in the period leading up to the confirmation vote. Whitehouse seems likely to bring up these questions (see below) and ask the Department of Justice whether any of them could constitute areas of legitimate concern (due to being federal crimes, and/or due to statues of limitations not yet having run out).
For that second point, some background:
This Esquire piece is just a blurb more than an article, but is recent:
The Esquire piece quotes from a 2018 Mother Jones piece:
If the mystery of Kavanaugh’s finances covers actual violations of federal law, then it would be appropriate for the DOJ to open an investigation. Questions of ‘what happens then’ can be dealt with after the investigations are completed.
This hasn’t been discussed at length because I think literally everyone in this thread agrees that it would be appropriate for Congress to look into the FBI’s actions. The “platitudes” aka simple statements of fact about Kavanaugh’s confirmation being a done deal are only being brought up in response to calls for the FBI to re-investigate Kavanaugh, not in response to calls for Congress to investigate the FBI, which, again, everyone in this thread seems to agree would be appropriate.
Well, yes, if there’s actual evidence that Kavanaugh’s financial dealings included federal crimes, then of course it would appropriate for the FBI or another agency with jurisdiction to investigate that matter. Although, I’ve got to say, just from what you cite, while his finances appear shady, there really doesn’t seem to be enough there to me to launch a criminal inquiry. Like, what’s the actual federal crime? But, I Am Not A Lawyer.
As gdave points out in Post 117, this point has been repeatedly raised in this thread. Everyong seems to agree that Congress can investigate the FBI to see if they did a shoddy job, or if it was cooked in advance. That’s exactly the sort of oversight that Congress has, provided it’s an inquiry into the FBI conduct, not a do-over of the Kavanaugh investigation. So you’re not raising a new point.
I don’t know why you’re so insistent that this must not under any circumstances be an investigation of Kavanaugh himself. If it’s determined that the original investigation was a sham, it seems that it would serve the cause of justice to do it properly. That it would probably not have any retroactive legal effect on Kavanaugh’s confirmation is irrelevant. The prevailing doctrine in democratic societies is that [freedom of] information about governmental entities and actions is always in the public interest. What we do with that information, and how future decisions are guided by it, is a different matter.
Your use of the term “do-over” is misleading as it implies something like “we didn’t like the answer the first time, so we’re going to do it again”. But that’s not the objective here at all. The objective is to get at the truth.
The reason I keep raising this point is that the FBI is a law enforcement agency with limited powers. They can investigate an alleged federal criminal offence. No such allegation has been made here, so far as I know. If Kavanaugh committed a sexual assault, that is a matter for state law. The FBI lacks legal authority to investigate it, as gdave has pointed out.
The second reason that the FBI sometimes has authority to investigate is to assist Congress by doing background investigations for candidates under consideration for a federal appointment. The Senate is entitled to as much information as it thinks necessary prior to deciding whether to confirm or appoint. But as gdave points out, they get authority then because the person under review normally gives consent to that review, because they want to be confirmed.
However, that does not apply here. Kavanaugh has been confirmed. The majority of the Senate evidently considered that they had enough information to make their decision. There is no further role for an FBI investigation, and as gdave points out, they would not have any investigatory powers for a background check, since there is no likelihood that Kavanaugh would sign the necessary consents to give the FBI investigatory authority.
Law enforcement should not be involved in repeated investigations for purely political purposes, when they have no legal authority to do so. That would be a serious misuse of the federal law enforcement agency.
Let me flip the question around: what do you think that the FBI could do? They are not investigating a federal crime, so no warrants, no subpoenas, no grand jury inquiries. They presumably would not have Kavanaugh’s consent to conduct an additional background check. If they do not have any legal authority to investigate, there is no obligation on any individual to talk to them.
So what investigation do you think the FBI could do?