Whatever the FBI does, the prospect of criminal charges being filed against Kavanaugh appear very 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, Maryland, where the statute of limitations would seem to preclude charges.
A look at the factors affecting the likelihood of criminal charges.
WHAT IS THE FBI’S ROLE?
The FBI conducts background checks for federal nominees but the agency does not make judgments on the credibility or significance of allegations, according to a Justice Department statement Monday night. 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.
“It has nothing to do with the statute of limitations,” Senate Democratic leader Chuck Schumer said Tuesday. “The FBI can query witnesses involved.”
President Donald Trump pushed back on this later in the day.
“I don’t think FBI really should be involved because they don’t want to be involved. If they wanted to be, I would certainly do that,” the president said. “But as you know, they say this is not really their thing.”
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 — 7 to 10 years.”
FBI background examinations received scrutiny when Rob Porter resigned as White House staff secretary in February after domestic violence allegations from two ex-wives became public.
FBI Director Chris Wray has said the bureau followed protocol when it twice provided the White House with information about Porter.
He told lawmakers that the FBI sent the White House its preliminary report in March 2017 and its completed investigation in late July and then, after receiving an additional request for a follow-up inquiry, provided more information last November. Wray said the FBI administratively closed its background file on Porter in January, weeks before the allegations were published.
COULD KAVANAUGH FACE STATE CHARGES?
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 fourth-degree sex offense, Rice said. But both charges are misdemeanors and would be far beyond the statute of limitations, which is typically one or three years, depending on the offense.
A police spokesman in Montgomery County, Maryland, didn’t immediately respond to questions about whether police would investigate.
HOW DIFFICULT ARE YEARS-OLD SEX ASSAULT CASES?
Even if the statute of limitations weren’t an issue, investigators would have a difficult time pursuing charges because the alleged attack happened so long ago. Still, they may want to verify elements of her story by trying to interview witnesses and if they can pinpoint where exactly the alleged attack occurred, they may visit the home.
Ford told The Washington Post that she believed the incident happened in the summer of 1982 but didn’t remember key elements, including how the gathering came to be and where exactly the home was located.
The investigation can also be complicated because Ford never filed a report with police at the time and if charges were brought, the defense would likely question the timing of the allegations.
“I think this is something women struggle with that are victims. They have to decide if they want to say something,” Rice said. “Certainly, in the last year, the #MeToo movement has given women the strength to come forward.”
Balsamo reported from New York.