Kavanaugh and Ford: The undetectable truth

Between the salty one-line tweets, the click-bait headlines, and the political maneuvering by politicians, even the most fundamental facts can become elusive. The exercise of free speech through the voicing of opinions is classic Americana, including those related to the allegations against Judge Brett Kavanaugh. But sometimes lively banter creates a fog of misinformation and misunderstandings. General confusion has already seeped into the conversation surrounding the FBI’s role, the value of the polygraph, and what would be deemed “normal” behavior for Christine Blasey Ford and Judge Kavanaugh.

Although the FBI is responsible for conducting background investigations on Supreme Court nominees, Ford’s allegations, based on the information made public, would not result in the opening of a criminal investigation. The FBI conducts criminal investigations that fall within their federal jurisdiction and are initiated based upon specific allegations. The details here lack a federal nexus, in terms of the type and elements of the alleged crime, notwithstanding the number of years that have passed and the lack of specificity related to the time and place of the incident. {mosads}

The reopening of the background investigation would likely not result in a change in the current course. The results of the multiple background investigations Kavanaugh had previously been subject to suggests a pattern of malicious behavior was not identified.

The suggestion that the FBI should investigate further just as was done with the Anita Hill allegation during Clarence Thomas’ confirmation hearing is flawed. The two situations are not the same for three reasons. First, the allegations against Justice Thomas were much more recent (approximately ten years prior) to the hearing; second, Justice Thomas was an adult at the time of the alleged activity; and both Justice Thomas and Ms. Hill were federal government employees at the time of the alleged activity, with Justice Thomas in a position of authority over Ms. Hill. Further investigative activity by the FBI in the Kavanaugh appointment process would be a misuse of the FBI’s finite resources and the overt politicization of the FBI by posturing politicians.

In August, at the recommendation of her attorney, Ford participated in a polygraph exam and reportedly passed. This claim is extremely misleading. A polygraph is a very useful investigative tool that measures a person’s physiological response to questions after establishing the person’s baseline, or expected physiological response to truth telling. It is not, however, a lie detector or a truth detector. Thus, its inadmissibility in court. The FBI frequently uses polygraph exams, and agents frequently take them, but polygraphs are just a tool, not an answer. Multiple factors go into determining the merits of a polygraph exam, not the least of which include the types and sequence of questions and the temperament and approach of the individual administering the polygraph.

It is easy from afar to opine on what might be considered “normal” behavior for someone accused of sexual assault, and equally easy to opine on how someone who was sexually assaulted should handle it. Social media has made it easy to opine on nearly anything. Intelligent people can argue all the different sides and scenarios as evidence of their position. However, it is plausible that the very public stage in which this war is being waged could have nudged both Ford and Kavanaugh outside the realm of what might be considered “normal” behavior. For example, some have asked why, if Ford is lying, would she ask for an FBI investigation, knowing that lying to the FBI is a federal crime? A reasonable question, but from an investigative standpoint, absent an admission of guilt from either party, in this case the “lie” would be just as unlikely to prove as the truth. In other words, if Doctor Ford was lying but stuck to her story, it would be highly improbable to achieve the elements of the crime of lying to the FBI. Intelligent attorneys would know such things. Just as they would know how poignant publicly calling for an investigation by the FBI would play out in the public’s eye. Even at the expense of their client’s privacy and legacy.

Currently, there is no way to know unequivocally who is telling the truth and who is not. We likely will never know. This may be something to consider before allowing the politics of it all to encourage a quick jump to one side or the other. Unfortunately, the lively debate will likely continue between the right and the left until a “winner” is finally announced. Though we don’t know yet which side it will be, we can say with certainty that both Ford and Kavanaugh, as well as their families, will undoubtedly be the losers.

Jeff Cortese, a financial crimes manager in the private sector, is the former acting chief of the FBI’s Public Corruption Unit. Before his 11-year career with the bureau, he worked as a dignitary protection agent with the U.S. Capitol Police and served on the security detail for the Speaker of the House. Follow him on Twitter @jeffreycortese.