Professional prosecutors remain dumbfounded by this line of argument. Former federal prosecutor Harry Litman tells me, “First, the FBI all the time does investigations of judicial candidates, at the request of the White House; that’s one of their integral functions, and it’s exactly what happened in the Anita Hill case.” He continues, “Second, there is a clear investigative template to follow here … It begins, importantly, by asking about all discussions the witnesses, and especially Mr. Judge, have had on the topic in the last few weeks — and obviously no memory issue there.” He adds, “They can then proceed to concrete details about the alleged episode and comparing notes among the witnesses. And then follow leads that they may have created — e.g., where was the party.” He points out that when it comes to the New Yorker’s article about the allegation from Deborah Ramirez, who describes a horrific episode in which Kavanaugh allegedly exposed himself, there is ample opportunity to investigate. This one is “totally straightforward for FBI,” Litman says. “She says somebody screamed down the hall ‘Brett Kavanaugh.’ ” The FBI can certainly look for those in the dorm who may have heard it.
Republicans’ argument against investigation is so flimsy and absurd that one is tempted to believe Republicans think voters are dolts and/or that there’s no harm in putting Kavanaugh on the court even if he did what he is accused of. Nevertheless, in the wake of the “mistaken identity” fiasco, the line for Republicans now seems to be that we shouldn’t call in the FBI to investigate distant events in a nominee’s past.
Sen. Lindsey O. Graham (R-S.C.) sounded just as foolish as Gowdy when he said of the Ford allegations on “Fox News Sunday,” “It’s too old for criminal trial; it’s 36 years old. You couldn’t bring a civil suit because you can’t tell the court what time it happened and where it happened.” Well, this is not a criminal trial; it’s a job interview for the highest court in which the nominee must convince the Senate he is fit for the job.
In any case, it is not too late for criminal investigation into Ford’s allegations. Maryland apparently does not have a statute of limitations on certain sex crimes because the legislature made the judgment that the barriers to reporting are so high that we cannot expect victims to report such crimes immediately. The legislature decided that one can determine credibility based on victims’ accounts, even decades later and even when the standard is “beyond a reasonable doubt.”
Graham prattled on: “And if you try to get a warrant based on this, you couldn’t get a warrant because the three people named by Dr. Ford as having been at the party outside of Kavanaugh all say they don’t know what she’s talking about. So, you couldn’t go to criminal trial; you couldn’t sue civilly. You couldn’t even get a warrant.” Well, someone should ask the Maryland police, but in any event, the Senate can use its subpoena power. And the FBI can ask people to cooperate voluntarily.
Graham did make one cogent point about bringing in an outside counsel: “Well, you got 11 politicians who haven’t done a trial in about 20 years. I thought it would be really smart to have somebody come in and knows what the hell they’re doing, to ask the questions, to be respectful.” It’s true. The Republicans seem to be completely unqualified to conduct an investigation, having regressed from the Anita Hill fiasco when the FBI was at least called in.
“It’s ridiculous to imply there is nothing here to investigate,” says former federal prosecutor Joyce White Vance. “The FBI can determine if there is evidence that tends to confirm or refute Dr. Ford’s allegations using the same tools they use successfully in the thousands of background investigations they complete every year.”
In short, the Republicans made a bizarre argument: If you don’t investigate and identify evidence, there is nothing to investigate. Well, if you’re going to take that position, I suppose Ford’s failure to report it when she was about 15 years old is entirely understandable. What was there to investigate? And really, why do background checks because there is no “crime scene” years later? Now, with a second woman and perhaps a third, as Michael Avenatti claims, the necessity of investigation becomes undeniable.