Matthew Miller is a partner at Vianovo and the former Director of the Office of Public Affairs at the Justice Department. You can find him on Twitter at @matthewamiller.

As the FBI prepares to conclude its review of the sexual assault allegations against Supreme Court nominee Brett Kavanaugh, it seems clear that its investigation has been cursory at best. According to NBC News, more than 40 potential sources have yet to be contacted by the FBI, including Kavanaugh’s original accuser, Christine Blasey Ford. A number of people with information relevant to the investigation have complained that even after calling the bureau’s field offices or national tip line in good faith, the bureau has not followed up with them.

Democrats have responded by accusing the White House of inappropriately restricting the bureau’s probe—a claim based on the fact the White House has authority to set the scope of follow-up background investigations—and a charge that the White House denies. But just as during the 2016 Clinton email investigation and the ongoing Russia probe, Democrats have largely failed to criticize the FBI for its role in the investigation, and have at times gone out of their way to praise its professionalism.


This strategy is both a political and substantive mistake, one that stems from the asymmetric way America’s two political parties deal with the administration of justice. Over the past several years, Republicans have repeatedly assaulted the Justice Department with hyper-politicized demands, while Democrats—for reasons that fall somewhere between tactics and timidity—have ceded the playing field to the loudest and most irresponsible actors on the right. The inevitable result has been a Justice Department that constantly scurries to respond to Republican criticism, making concessions that would have once been unimaginable, in a fruitless attempt to appease people who have no respect for the department’s obligation to enforce the law fairly.

Consider who is in charge of the FBI’s investigation: Director Chris Wray, who attended Yale Law School with Kavanaugh (he was two years behind him) and, like Kavanaugh, joined the conservative Federalist Society while there. During the George W. Bush administration, Wray worked as a political appointee in the deputy attorney general’s office while Kavanaugh served as a deputy white House counsel—positions in which they would have regularly dealt with each other.

Wray himself is supervised by another former Federalist Society member, Deputy Attorney General Rod Rosenstein. Rosenstein’s ties to Kavanaugh run even deeper—they worked together on Ken Starr’s investigation of Bill Clinton in the 1990s, and Rosenstein attended the first day of Kavanaugh’s confirmation hearings.

Of course, that doesn’t mean that Wray and Rosenstein can’t fairly oversee an investigation into Kavanaugh. But one has to consider only that Republicans have spent years accusing former FBI director and lifelong Republican James Comey of orchestrating a cover-up for Hillary Clinton to understand how the GOP would react if, say, an FBI investigation into a Democratic Supreme Court nominee was being overseen by a graduate of the nominee’s law school and a former colleague.

While it is true that the White House determines the scope of a background investigation, the FBI possesses a number of tools to shape its outcome if it feels it is being unfairly restricted. For example, the bureau could formally notify the White House in writing that it believes further witness interviews are necessary to obtain a complete picture—an act of bureaucratic pressure that would be difficult to ignore, especially if Wray shared that conclusion with key senators. It could compile every allegation and lead it has obtained through its tip line and field offices in its final report, even those the bureau has been blocked from investigating. Finally, it could do what it does best when it feels unfairly jammed by other government agencies: leak aggressively to the media.

Absent any pressure from Democrats, however, the FBI is likely to simply follow its orders from the White House. So what should Democrats do? Treating the FBI as aggressively as the GOP does would be a start.

First, the ranking member of the House Judiciary Committee, Rep. Jerry Nadler, could make clear that, should he become a subpoena-wielding chairman in January, he will aggressively investigate the FBI’s conduct in the Kavanaugh investigation. Notifying the FBI and DOJ that he will subpoena documents, demand interviews with officials at every level, and ultimately hold a hearing will have a dramatic impact on an agency that rightly worries about its public standing—and where key officials worry about their personal reputations—after several years of GOP attacks.

Democrats could demand that Wray and Rosenstein recuse themselves from the Kavanaugh probe, given their longstanding ties to the nominee, and insist the investigation be overseen by the FBI Deputy Director David Bowdich, a career agent with no ties to either political party.

Finally, they could insist that the FBI interview notes (known as 302s) be released publicly before Kavanaugh’s confirmation vote, slated for later this week. This would be an unprecedented move for a background investigation, but again, the Republican playbook here is worth noting. In September 2016—two months before the presidential election—the FBI took the highly unusual step of publicly releasing 302s from the Clinton email investigation, a move it claimed was warranted due to unusual public interest, but was in fact a response to pressure from Republicans on the Hill.

Democrats don’t actually have to be successful in achieving any of these specific outcomes to achieve their overall goal of obtaining a full and fair investigation into the allegations against Kavanaugh. Republicans haven’t achieved most of their demands of DOJ during either the Clinton or Russia investigations, but their relentless pressure on the department has led it to take steps it wouldn’t otherwise take at several key moments. That same outcome should be Democrats’ goal here.

I am sympathetic to the idea that Democrats should not merely ape the Republican playbook of politicizing law enforcement and have made that argument myself on many occasions. But it’s clear that the Kavanaugh investigation is a sham, and anyone involved in perpetrating that sham—whether at the White House or in law enforcement—should know that they will be held accountable. Moreover, while attacking the conduct of this investigation would be newly aggressive, given the investigation’s clear deficiencies, this stance is entirely consistent with the Democratic Party’s commitment to the rule of law.

It’s time for Democrats to realize that the rules have changed. It’s not enough to simply rely on most federal law enforcement officials being well-intentioned, nonpolitical figures trying to do the right thing under tough circumstances. That’s a description that applied to both Comey and former Attorney General Loretta Lynch, yet sustained Republican pressure led each of them to decisions in 2016 (Comey speaking publicly in both July and October 2016 about the Clinton investigation; Lynch not blocking him from doing so) that might have helped put Trump in the White House.

There is no sign the Republican Party intends to change course soon. If anything, its pressure on federal law enforcement seems likely to intensify as Robert Mueller’s Russia probe nears its conclusion. If Democrats hope to ever get a fair shake, their only choice is to fight fire with fire. While such a fight would be ugly, putting federal law enforcement on notice that both parties are watching its decisions would yield a better outcome not just for Democrats, but for the country.