PHILADELPHIA — On a screen filtered by night-vision goggles, U.S. Rep. Brian Fitzpatrick’s campaign asks voters in a digital ad to “decide” between the Republican lawmaker deployed to Iraq as an al-Qaeda interrogator and his Democratic challenger, Bucks County Commissioner Bob Harvie, who the ad’s narrator claims was “engaged in a massive political corruption scheme.”

A television ad highlights in bold red and yellow letters: “Bob Harvie Under FBI Investigation.”

An image plastered online calls on Harvie to “release the Bob Harvie FBI Files.”

Fitzpatrick and Harvie are battling for the Bucks County-based 1st Congressional District, one of four seats in Pennsylvania that could determine control of the U.S. House.

Fitzpatrick, a five-term incumbent and a former FBI agent in the toughest election cycle of his career, has centered much of his reelection bid on calling Harvie the “subject” of an FBI corruption investigation into Falls Township after the commissioner testified as a witness before a grand jury four years ago.

No indictments or charges have been filed in connection with the investigation. In an interview, Harvie said he has never been under investigation. He testified as a witness before the grand jury in addition to other officials, he said, and does not have any files to release.

Yet as Election Day nears and the race becomes increasingly competitive, Fitzpatrick and a super PAC supporting him have been churning out different versions of the attack in an attempt to reach voters in the critical swing district. It is one of the most common lines of attack in a race that has seen the Republican spend $5 million over the summer, mostly on advertising.

The ads imply that Harvie’s grand jury testimony indicates malfeasance, paralleling the language used in relation to the Epstein files, of which both candidates have said they support the release.

The incumbent has also refused to debate Harvie unless the commissioner releases “files” related to the investigation — documents that Fitzpatrick has said he is certain Harvie possesses.

But three Pennsylvania legal experts and professors with decades of combined experience in prosecuting government cases or defending witnesses in federal investigations told The Inquirer it would be highly unlikely that Harvie has most — if any — of the documents Fitzpatrick’s campaign contends he has.

The Democrat sent a cease-and-desist letter to Fitzpatrick’s campaign and filed a defamation suit against the pro-Fitzpatrick super PAC, Defending America PAC, this summer.

So, as the back-and-forth continues over ad blitzes and legal filings amid one of the most contentious and expensive races in the history of the district — what’s true and what’s not?

What was the FBI probe?

In 2022, LevittownNow.com reported that Harvie and other officials testified before a grand jury in an FBI probe into political donations and union contracts related to the Pennsbury School District. The FBI investigation had run for years before the grand jury, including interviews with several people connected to Falls Township and Pennsbury.

Before becoming a county commissioner in 2020, Harvie was a Falls Township supervisor. As he ran for reelection to the county board in 2023, he said he had never been the target of an FBI investigation.

There are three legal statuses for people who go before a grand jury, the legal experts said: a witness; a subject, whose conduct is within the scope of an investigation; and a target, someone about whom the U.S. attorney believes there could be enough evidence to charge with a crime.

Harvie and his attorneys have said he served as a witness and has not had any contact with the FBI since his testimony in 2022.

In a statement, Timothy J. Ford, the attorney for Bob Harvie’s campaign, said that “Bob has been and always will be cooperative with law enforcement” and that Fitzpatrick “well knows” that grand jury probes are secret.

Would Bob Harvie have any ‘files’?

The “files” have become a cudgel for the Fitzpatrick campaign.

In one video that has been promoted on his social media, Fitzpatrick said he would debate Harvie 10 times, but only if the commissioner addresses “the elephant in the room … the FBI corruption investigation that you’ve been the subject of” by releasing certain files.

Fitzpatrick called on him to “release all the records beforehand, and in advance,” including FD-302 reports, which document an FBI agent’s interview with a witness; grand jury subpoenas; a transcript of Harvie’s grand jury testimony; and immunity documents, along with other records.

In an interview, Fitzpatrick said his experience as a federal agent and prosecutor gives him insight into which documents Harvie would have and what his status was during the investigation. He acknowledged that Harvie might not have all the documents but said he has “some” and specifically doubled down on Harvie possessing a subpoena and having the ability to request a transcript of his own grand jury testimony.

“The only way we’re ever going to find out is if he is willing to sit down on the record, off the record, any format, any venue he wants to fully vet this out,” Fitzpatrick said.

It would be very unlikely for files, such as the 302 interview reports or transcripts, to be in Harvie’s possession, given the rules for grand juries and that this case has not been brought to an indictment, where there could be a discovery period for potentially a portion of the documents, said Lauren Ouziel, a law professor at Temple University’s James E. Beasley School of Law and a former federal prosecutor in the Eastern District of Pennsylvania.

“If it was never turned into an indictment, it would be highly, highly unusual for any records, like internal FBI documents, to be released outside government channels,” Ouziel said.

It is possible for Harvie to request his transcript, but that would require a judge to unseal it. It is unclear whether a court would grant that request if the government objected and whether Harvie would be able to receive a personal copy rather than just being able to view it, Ouziel said.

Details related to grand jury proceedings are opaque to the public because of a rule that prohibits those involved, except for witnesses, from sharing what they know or remember about the case or their status before a grand jury, Ouziel said.

“It’s not like you could call the prosecutor’s office and say, ‘Hey, can you tell us if this person was a witness or a subject or what?’ They can’t. They literally can’t. It would be a crime if they did,” Ouziel said. “And same with the defense attorneys.”

Harvie repeatedly said that he does not have any files from the investigation, in which he was one of many witnesses and which did not result in any charges.

The Democrat, who experts said is legally able to talk about his testimony, neither confirmed nor denied that he was granted immunity and declined to share further details on the probe.

He argued that Fitzpatrick’s focus on the topic is an effort to avoid talking about key issues and a record “which is failing, quite frankly, to protect the people of this district and this country from a president who’s been cutting their healthcare, who’s been making all their lives more expensive.”

“So it doesn’t surprise me that he’s flailing around trying to smear me,” Harvie added.

Michael Levy, an adjunct professor at University of Pennsylvania’s Carey School of Law who was an assistant U.S. attorney in the Eastern District for more than 37 years, emphasized that there would be no reason for Harvie to see these documents unless the Democrat had been called as a witness in a trial (the case has not gone to trial) and that it would be highly unlikely for a court to unseal transcripts.

Though it is unclear what the FBI was investigating in this case, the statute of limitations for most federal crimes is five years, Levy said.

As for any possible subpoenas, they would not include specific case details and, after testimony, are “just another piece of paper,” he said.

“They just keep saying (Harvie) has this stuff, but they don’t give any idea why they think he has it,” Levy said of Fitzpatrick’s campaign.

Stanley Brand, a distinguished fellow in law and government at Pennsylvania State University Dickinson Law with 50 years of experience in defending witnesses in government cases, said that from an outside perspective Fitzpatrick’s allegations sound “like campaign high jinks” in a competitive race.

“This is all smoke and mirrors at this point,” Brand added.

Fitzpatrick, when asked about the experts’ opinions, maintained that Harvie was not being up-front with voters.

‘Rhetorical hyperbole’

Matters reached a boiling point this summer when Harvie filed a defamation lawsuit against Defending America PAC, a pro-Fitzpatrick super PAC, and its president over websites, social media posts, and other materials that tied Harvie to the FBI investigation.

Defending America PAC filed a motion to dismiss that suit last week, arguing that Harvie campaign’s filing lacked standing and that the attacks fall within bounds of a political campaign.

Attorney George Bochetto wrote that “this is not an attempt to damage Harvie’s reputation in his community. Rather, Defendants are providing relevant information regarding his background to the electorate in his congressional district.”

“Viewed in context, the Statements are matters of opinion or rhetorical hyperbole about a public figure and political opponent,” Bochetto wrote.

That came after the Harvie campaign sent the PAC and the Fitzpatrick campaign cease-and-desist letters for their rhetoric.

Ford, the Harvie campaign’s attorney, said that Harvie is exploring all his options in response to the PAC moving to dismiss the suit.

This is also not the first time that the FBI investigation has surfaced on the campaign trail. When Harvie was running for reelection as county commissioner in 2023, LevittownNow reported at the time that GOP mailers claimed Harvie was “wrapped up in an FBI investigation.”

Harvie has pointed to that experience in arguing he believes he will overcome Fitzpatrick’s allegations during this campaign. The Democrat said during a September interview with The Inquirer Editorial Board that the ads are angering voters on the campaign trail.

“These people are just very angry about what they’re seeing, and they’re angry, number one, because they don’t like how vicious it is, how ugly it is, and they don’t like that it has had anything to do with what’s happening in their lives,” Harvie told the board.

(The editorial board, which runs The Inquirer’s opinion pages and decides endorsements, operates independently from the newsroom.)

As temperatures continue to rise in the 1st District, experts said this situation could shake out in a few different ways, though Ouziel, the Temple professor and former federal prosecutor, noted that it is “hard to prove a negative” and that residents would have to take Harvie at his word.

Brand, the defense attorney and Penn State professor, said even if Harvie hypothetically did have any type of document to release, it could cause even more confusion because most records would still be in government custody.

“He only has what he has, and so to coax him out of the rope-a-dope he’s in, you know, his hands are tied. So he’ll release part of it. That’ll raise more questions than it answers,” Brand said. “Then they’ll say, ‘Well, what about the other documents? What do they show?’”

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