The Washington PostDemocracy Dies in Darkness

Kavanaugh’s confirmation hinged on an FBI investigation that increasingly looks incomplete

Days after President Trump called for a “thorough” investigation into allegations against Brett M. Kavanaugh, the FBI submitted a limited report. (Video: JM Rieger/The Washington Post)

By late September 2018, the Department of Justice had weathered months of unprecedented criticism from the president of the United States. Donald Trump had disparaged the FBI as having gone soft on his 2016 election opponent, Hillary Clinton, and of orchestrating a “witch hunt” against him personally.

A special counsel working for Justice had already obtained indictments against a number of people tied to Trump’s campaign, and the ongoing probe was an incessant target of Trump’s ire. He already had fired the director of the FBI, James B. Comey, and would, a little over a month later, oust his attorney general, Jeff Sessions — himself a frequent target of Trump’s tweets.

It was a moment when tensions between the world of politics and the ideally-but-imperfectly apolitical world of federal investigators were near a peak. And at that very moment, out of the blue, the FBI was given a new mandate: resolve one of the most contentious issues in American politics.

That issue was the nomination of Brett M. Kanavaugh to sit on the Supreme Court. Kavanaugh would be the second justice Trump had appointed to the nation’s highest court. His first nominee, Neil M. Gorsuch, had been confirmed relatively easily, filling a seat intentionally left vacant by Senate Majority Leader Mitch McConnell (R-Ky.) for most of the last year of Barack Obama’s presidency. Kavanaugh, though, was trickier, thanks to the emergence during the confirmation process of allegations that he had assaulted a fellow student named Christine Blasey Ford at a get-together when they were in high school. Once that allegation emerged, so did others, including an allegation that, at a party when he was a student at Yale, he had exposed himself to a classmate named Deborah Ramirez.

President Trump rejected Democrats’ calls for impeaching Supreme Court Justice Brett Kavanaugh on Sept. 15. (Video: Reuters)

The country heard from Ford directly when she offered testimony before the Senate Judiciary Committee. Ramirez’s story was told only through the media, emerging in a New Yorker report shortly before Ford’s appearance on Capitol Hill.

Kavanaugh himself appeared before the committee after Ford. In introducing the questioning, Sen. Charles E. Grassley (R-Iowa), the committee chairman, noted that his panel had sought evidence from Ramirez’s attorneys eight times and said her attorneys didn’t “make her available” for interview. Asked about her allegations, Kavanaugh replied that they, along with those of Ford and a third accuser named Julie Swetnick, were wrong — and that he said so “emphatically.”

At a later point, Kavanaugh said of Ramirez’s accusation that “none of the witnesses in the room support” her assertion. “If that — that had happened,” he added, “that would have been the talk of campus in our freshman dorm.”

Kavanaugh’s angry response to the senators’ questions enhanced the central political friction underlying his nomination. Republicans saw a man unjustly accused and righteously furious; Democrats saw a guilty man unused to being held accountable for problematic behavior. The divide between voters in each party was wider than on any other issue of Trump’s presidency to that point.

The dual Ford-Kavanaugh hearings didn’t resolve the nomination vote itself. Before the Senate Judiciary Committee advanced Kavanaugh to the full Senate for a vote, Sens. Jeff Flake (R-Ariz.) and Christopher A. Coons (D-Del.) reached an unusual (though not unprecedented) agreement: The FBI should dig further into the allegations against Kavanaugh and present an assessment of the new claims before the Senate made up its mind. Flake himself had been a target of Trump’s, ultimately deciding not to run for reelection in the then-upcoming midterm elections after losing the support of Republican voters in his state as the president singled him out for disparagement.

Coons and Flake agreed: If the FBI’s ancillary probe showed that Kavanaugh had lied, Kavanaugh’s nomination was doomed. (There were, it’s worth noting, already existent examples of inconsistencies in Kavanaugh’s testimony.) That a vote would fail under those circumstances seemed likely, particularly given the split in the Senate: The Republicans had a two-vote advantage, including Flake and other moderates like Sen. Susan Collins (R-Maine). Lose two votes, and Kavanaugh’s nomination wouldn’t go through.

The stakes for the probe — and for Trump’s breathless defenses of Kavanaugh — were huge. The Republican leadership in the Senate had little choice but to agree to the new investigation, but that didn’t mean they had to like it. The bureau was given one week to interview possible witnesses to the accusations against Kavanaugh and to report back what it found.

As was noted at the time, one week was not a lot of time for a robust FBI probe. What’s more, the investigation wasn’t conducted under the Senate’s authority but through the Trump administration, which oversees the bureau. At first, the White House imposed strict constraints on the scope of what the FBI could look at, loosening those bounds only slightly as the probe progressed. Post reporting at the time suggested that fewer than 10 people had been interviewed by the FBI by the time the review concluded, most of them related to the Ford allegations.

Why the rush? One looming deadline was the 2018 midterm elections. Those elections could have made Kavanaugh’s nomination even more difficult, given the (unlikely) prospect that Democrats could gain seats in the Senate. Another problem was that it seemed possible that more accusations could arise if the process were any more prolonged. So one week and tight constraints were imposed on a bureau and a department that were already facing enormous pressure from the White House.

This wasn’t the probe that some senators appeared to expect. Collins, for example, expressed confidence that the FBI would pursue all leads that emerged from its interviews. The Post reported at the time, though, that while Ramirez had been interviewed by the bureau, her lawyers didn’t believe that the FBI had contacted any of the people on a list it provided of more than 20 potential witnesses who might be able to corroborate the story about the Yale party.

The FBI's probe didn't turn up anything new. Kavanaugh was confirmed, with Flake's and Collins's support, exactly one month before the midterm elections.

Over the weekend, the New York Times published an article raising new questions about Ramirez’s allegation. Excerpted from a book about the confirmation fight written by two Times reporters, it introduced a number of new examples of Ramirez’s story being corroborated.

“At least seven people, including Ms. Ramirez’s mother, heard about the Yale incident long before Mr. Kavanaugh was a federal judge,” Robin Pogrebin and Kate Kelly reported. “Two of those people were classmates who learned of it just days after the party occurred, suggesting that it was discussed among students at the time.”

Following a new sexual misconduct allegation against Supreme Court Justice Brett M. Kavanaugh, some Democratic presidential candidates called for impeachment. (Video: Allie Caren/The Washington Post, Photo: Graphic: Sarah Hashemi/The Washington Post)

As they put it, “Mr. Kavanaugh said that if the incident Ms. Ramirez described had occurred, it would have been 'the talk of campus.' Our reporting suggests that it was."

They also introduced a new allegation from a D.C. attorney who claims to have witnessed Kavanaugh similarly exposing himself at a party during college. That allegation was conveyed to the Senate during the confirmation process to Coons’s office, with Coons asking FBI Director Christopher A. Wray to include the attorney, Max Stier, in the Kavanaugh investigation.

He wasn’t interviewed.

It was obvious at the time that the FBI probe would not be seen as dispositive, as The Post’s reporting from October 2018 makes clear. As a result, it was perhaps inevitable that the emergence of new details about the Kavanaugh-related incidents would reintroduce questions over his nomination and the vote to confirm him to the Supreme Court. The resolution of those questions is now the centerpiece of discussion in Washington: Are they simply sour grapes from Kavanaugh’s opponents, or should there be some effort to revisit Kavanaugh’s confirmation itself, perhaps in the form of an impeachment and removal from the bench?

The primary question, of course, is not what Kavanaugh did in college but what he said about his actions when speaking under oath to the Senate Judiciary Committee. The additional FBI probe was established to be able to evaluate that question, as Coons and Flake stated at the time, but the probe appears to have never been empowered to actually answer it.

There was almost certainly little appetite by Sessions to have ensured that the investigation press hard despite White House efforts to limit it, both because of his own tense relationship with Trump and because he was himself a conservative former member of the U.S. Senate who would certainly have voted to confirm Kavanaugh if he had never left that body. Sessions was fired right after the midterms.

During his committee testimony, Kavanaugh was unwavering in his dismissal of the claims.

“None of these allegations are true?” Sen. John Neely Kennedy (R-La.) asked then.

“Correct,” Kavanaugh replied.

“No doubt in your mind?” Kennedy said.

“Zero,” Kavanaugh said. “I’m 100 percent certain."

“Not even a scintilla?” Kennedy pressed.

“Not a scintilla; 100 percent certain, Senator,” Kavanaugh said.

“You swear to God?” Kennedy asked.

Kavanaugh agreed.

“I swear to God.”