FBI leaders are warily trying to navigate their way through the politically charged background-check investigation into Supreme Court nominee Brett M. Kavanaugh, as the bureau seeks to protect itself now — and after the midterm elections — from what could be fierce congressional criticism. . . .
FBI agents have completed a first batch of interviews of four individuals closest to the alleged events, and the White House has signaled to the bureau that it can conduct further interviews, according to the people familiar with the matter. So far, there have been no observable moves by the FBI to interview people beyond those four.
Sen. Jeff Flake (R-Ariz.), the most outspoken of the undecided Republican senators on Judge Brett M. Kavanaugh’s nomination to the Supreme Court, told an audience in Boston, Mass., this week, “It does no good to have an investigation that just gives us more cover, for example.” He wants a “real investigation.” However, if the FBI investigation ends without questioning either Kavanaugh, Christine Blasey Ford or key witnesses, Flake and the rest of us will have every reason to think the investigation was a sham.
If undecided Republicans couldn’t vote to confirm Kavanaugh without a FBI investigation to get to the bottom of the allegation of sexual assault by Ford, then they cannot very well confirm if the FBI has not done its job before Friday’s vote. Flake and Sens. Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska) can ask the FBI to be given more time. However, the senators’ only real recourse is to vote no if they are unsatisfied with the thoroughness of the investigation.
We would like to think the wavering Republicans would do exactly that, but we won’t be surprised if they cave and vote to confirm. What then?
If Kavanaugh is confirmed, between now and January when a new Congress gets sworn in, other witnesses or claimants may pop up. If they have evidence germane to the investigation, the FBI will be severely criticized and Kavanaugh’s credibility may suffer a fatal blow.
If Republicans lose the majority in one or both chambers in the November midterms, the Democrats will use their majority power to pick up the FBI investigation precisely where it left off. Let’s say Deborah Ramirez, the second woman to accuse Kavanaugh of sexual misconduct, gave the FBI names of crucial witnesses but the FBI did not question any of them. You can bet Rep. Jerrold Nadler (D-N.Y.), who likely will be the new Judiciary Committee chairman, can subpoena them and require them to testify in an open hearing. The Democrats can also subpoena the investigators, any documents and any communications between the FBI and the White House to see if the FBI was hampered by political pressure. The FBI investigation itself goes on trial in the court of public opinion, and, depending on what additional witnesses say, Kavanaugh’s tenure on the court could be imperiled in one of two ways.
First, there may be compelling evidence Kavanaugh did what he was accused of and then misled the Senate. In that case, Nadler and his committee will waste little time drafting articles of impeachment. The Senate is then required to hold a trial to determine if Kavanaugh should be removed.
Alternatively, compelling evidence may be brought that Kavanaugh lied about his drinking, his calendar entries, his social life and matters like knowledge of Ramirez’s claims. The House doesn’t have to conclude he committed perjury to find that his answers were so misleading that he should be disqualified from serving on any court. Republicans feign amazement we are talking about “minor” matters, but no lie under oath is too little to disqualify a Supreme Court judge. (Even President Trump said so!) As Ben Wittes wrote in the Atlantic:
Kavanaugh’s testimony, whatever one makes of his impassioned claims of innocence on the specific charge, is not credible on the more general issue of his drinking habits. It is, as Kavanaugh suggested at the hearing, absurd for senators to argue with a Supreme Court nominee over his high-school yearbook. Then again, Kavanaugh’s unwillingness to acknowledge the obvious—that his yearbook described a hard-drinking culture that he was a part of and that makes Ford’s account more plausible—made it necessary to do so. Kavanaugh would not concede that the phrase “Beach Week Ralph Club—Biggest Contributor” referred to drinking culture, claiming it was simply a reference to his having a weak stomach. He ascribed implausibly innocent definitions to other terms that appeared in the yearbook. He diminished the casual cruelty he and his friends showed to one girl, Renate Schroeder Dolphin, by describing themselves as “Renate Alumni.”
Democrats, if convinced he lied, will surely mount an impeachment effort.
The three undecided Republican senators (perhaps more) should consider just how extensive an investigation was undertaken. Along with allegations of sexual assault and lack of truthfulness, they must decide whether Kavanaugh has so discredited his own stature as an impartial arbiter that putting him on the Supreme Court risk permanently damaging the judiciary. (You can bet every progressive interest group with a case before him would move to recuse him.)
Unless 51 senators are certain the FBI talked to all the credible witnesses, Kavanaugh didn’t sexually assault either woman and was entirely truthful under oath, they should tell Trump to go back to his list of nominees. Whether they will do so is anyone’s guess.