A re-opened FBI probe into Brett Kavanaugh’s background and whether he engaged in sexual misconduct is a longshot to turn up definitive proof, but could still unearth damaging information about the embattled Supreme Court nominee or his accusers.
That’s because key witnesses such as Mark Judge, Kavanaugh’s high school friend who reportedly was present for an alleged sexual assault against Christine Blasey Ford, appear to have agreed to cooperate with the FBI after earlier providing more limited statements to the Senate Judiciary Committee denying Ford’s claims or saying they couldn’t recall events she described.
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Former FBI officials and others who have dealt extensively with background investigations say the FBI say agents could come up with new details, particularly since they can now work off of detailed testimony Ford and Kavanaugh gave to the Senate Judiciary Committee Thursday and other newly available evidence, like Kavanaugh’s calendars.
“There’s a chance, if they’re delving into specific things,” former FBI assistant director Tom Fuentes said of the possibility the bureau will find previously undisclosed facts or witnesses. “Even Kavanaugh raised a few issues all by himself that might merit further looking at. My opinion is he went way over the top when he kept talking about how much he likes beer….Kavanaugh is vulnerable here.”
One attorney familiar with the background check process said questions asked by trained FBI agents could elicit different answers than those asked by Senate GOP staffers, who conducted their own inquiry into many of the allegations.
“The FBI is more experienced than the Senate staff. I’d be concerned about either side really that their questions were already slanted to reflect certain answers,” said Mark Zaid, who represents government employees in security clearance disputes. “I have little faith in either the majority or the minority to ask the right questions. I’d hope the bureau would not be tainted by that and will just want to find out the facts.”
Zaid said different investigators can get dramatically different information from witnesses. “I often see in a background investigation completely different and new information elicited depending on how you ask the questions,” he said.
For weeks, the White House and Senate Republican leaders have rebuffed calls to reopen Kavanaugh’s background investigation. But as Kavanaugh’s nomination was heading to a vote Friday in the Senate Judiciary Committee, Sen. Jeff Flake (R-Ariz.) said he would insist on a further FBI inquiry as a way to try to assuage doubts about the nominee.
Once it became clear Flake’s call was backed by at least two other GOP senators, the White House said President Donald Trump agreed to order the FBI to look into the allegation against Kavanaugh. While senators agreed to give the FBI up to a week to investigate, Trump seemed to shorten the timeline a bit, saying he wants the probe finished in less than seven days.
Some Republican senators said Friday they consider any further work by the FBI futile.
“I don’t think we need this….I just don’t see we’re going to benefit from anything,” Sen. Lindsay Graham (R-S.C.) told reporters. “I’ve been doing this most of my adult life. It’s 35 years ago. You know what you know and you know what you’re going to hear….The fact pattern here leads itself to, ‘I’m sorry. There’s just not enough.’ We got to move on.”
Former Justice Department official Mike Zubrensky, who spent almost seven years vetting Obama administration judicial appointees, disputed Graham’s claim.
“I don’t think it’s a pointless undertaking,” said Zubrensky, now chief counsel for the Leadership Conference on Human and Civil Rights, which opposes Kavanaugh’s confirmation.
Zubrensky noted that the FBI probe would mean yet another opportunity for Kavanaugh to be interviewed about his conduct.
“The FBI would look at the statements he made yesterday during his hearing and if there’s conflicting or inconsistent information or evidence acquired during the course of the investigation and likely ask Judge Kavanaugh about the apparent inconsistencies. I do think the testimony provides a lot more information to work off of.”
Among the specific facts the FBI might be able to confirm is a detail Ford sought clarification about during her testimony Thursday. She said knowing when Kavanaugh’s friend Judge worked at a Maryland Safeway supermarket in the summer of 1982 would help her narrow down the date of the alleged assault. A book judge wrote says he bagged groceries in 1982, but doesn’t provide further details.
The FBI may also be able to turn up more information about whether the party Ford recalls may coincide with a July 1, 1982, entry on Kavanaugh’s calendar that appears to show he, Judge and other friends attended a party that evening at the home of a friend in Rockville, Maryland. Some details about the home seem to align with Ford’s description, but others do not, according to the Los Angeles Times.
Republicans have sought to limit the scope of the new investigation to one week in duration and to claims already raised with the Senate Judiciary Committee. That appears to sweep in Ford’s allegations as well as Deborah Ramirez’s assertion that Kavanaugh exposed himself to her at a drunken party at Yale when the two were both freshmen there 35 years ago and Julie Swetnick’s claims that she attended a series of parties where Kavanaugh and Judge spiked punch with alcohol or drugs in order to incapacitate women. Swetnick asserts that some of the women were gang raped, although she doesn’t say Kavanaugh or Judge took part in that.
Kavanaugh and Judge have flatly denied the claims.
Graham cautioned that the reopening of the FBI probe should not be allowed to lead to further delays in Kavanaugh’s confirmation or to a spiraling series of allegations others could level against Kavanaugh. “We’re not playing this game of opening this up and it goes on forever,” the South Carolina Republican warned.
However, Fuentes said he wouldn’t be surprised if, despite the scores of Kavanaugh classmates who have emerged to support him, more comes out of the woodwork to accuse him of things now that the FBI is investigating.
“Everyone is assuming that Kavanaugh is beloved by every classmate and every woman he ever mentored. Sometimes overachievers weren’t all that popular,” the former FBI executive said. “He’s very vulnerable in this as well, even to someone lying. Could his nomination withstand any additional accusations, true or untrue? Maybe not.”
It seems likely that at least some people who claim to have relevant information about the current accusations against Kavanaugh and were not interviewed by Senate investigators will wind up talking to the FBI.
They include Judge’s ex-girlfriend Elizabeth Rasor, who has suggested she’s willing to discuss some of the boasts he made about sexual antics while attending Georgetown Prep with Kavanaugh.
Lawyers for two other Kavanaugh accusers, Ramirez and Swetnick, have also said they’re ready to speak with the FBI. Swetnick’s lawyer Michael Avenatti has also said she has witnesses who can corroborate her story that Kavanaugh attended parties where girls were slipped alcohol or drugs and subjected to sexual advances or even gang rape.
Despite the talk of cooperation, uncertainty remains whether all the witnesses the FBI may want to talk to will actually wind up being interviewed by agents.
For one thing, there are disagreements about how the results of the interviews should be treated.
Judge’s letter Friday saying he would cooperate with any law enforcement investigation indicates that he’ll do so if the inquiry is handled “confidentially.”
However, Swetnick’s attorney rejected that approach.
“We want the results and information made public.” Avenatti wrote on Twitter Friday afternoon.
Results of background investigations are typically held in confidence by the Judiciary Committee, although it may be unrealistic to expect that information to remain secret given the white-hot media spotlight on Kavanaugh.
Zubrensky said it is common for people to ask to speak to the FBI in confidence about a nominee. “I read hundreds, perhaps thousands of background interview summaries during five or six years in the Obama administration,” he said. “Most of the time people go on the record, but in a number of instances they said to the FBI: ‘I’ll talk to you but I don’t want to be identified.'”
If witnesses don’t want to speak to the FBI or fear they’ll be prosecuted for something, the bureau lacks the power to make them talk. “Nobody has to talk to the FBI, even if you’re accused of treason,” Fuentes noted.
The compromise several senators insisted on Friday punts a highly polarized issue to the FBI at a time when the bureau is still reeling from more than a year’s worth of public attacks from Trump related to the Russia probe and intense scrutiny from outsiders and the media of alleged bias in the FBI’s ranks.
But Fuentes said he doesn’t think the FBI will balk at the task.
“The bureau has an army of people they can apply…About two-thirds of the Washington Field Office does background investigations,” he said, while adding that FBI leaders could even order in other agents from elsewhere to handle the Kavanaugh probe.
“It’s referred to as a bureau special,” the former FBI official aid. “Now, the pressure’s on the FBI. Now, they have to do a credible job themselves….They’re going to do what they have to do and be diligent and thorough about it, especially now that the whole world is watching.”