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Experts react: White House, GOP impose strict limits on Kavanaugh FBI probe



Brett Kavanaugh testimony
Court nominee Judge Brett Kavanaugh takes the oath before the US
Senate Judiciary Committee in the Dirksen Senate Office Building
on Capitol Hill September 27, 2018 in Washington,

Saul Loeb-Pool/Getty

  • The FBI’s supplemental background check on Supreme Court
    nominee Brett Kavanaugh is far more constrained by Republicans
    and the White House than previously known.
  • Legal experts suggested the restrictions are intended to
    handicap the investigation and shield Kavanaugh from legal
    exposure related to sexual-misconduct allegations and a potential
    perjury charge.
  • “There isn’t a finder of fact in the country that would
    hamstring investigators like this,” said one DOJ veteran. “It
    would be comical if it wasn’t so important.”

A steady trickle of revelations over the weekend indicates that
the FBI’s supplemental background check into Supreme Court
nominee Brett Kavanaugh is much more limited than previously

The original parameters, Republican lawmakers said, were that the
inquiry should be constrained to “current credible” allegations
against Kavanaugh and that it should be completed within one

But NBC News and The New York Times reported on Saturday that in
addition to those limitations, Republicans and the White House
gave the FBI a list of just four witnesses to interview.

Investigators have also reportedly not been permitted to scour
certain records that could be critical to ascertaining the
credibility of Dr. Christine Blasey Ford, the first woman to
accuse Kavanaugh of sexual misconduct.

The FBI will probe aspects of sexual misconduct allegations made
by all three women who have come forward against Kavanaugh, but
it does not reportedly plan to directly question the third, Julie
Swetnick, about her claims.

The White House counsel Don McGahn, who is in charge of guiding
Kavanaugh’s confirmation process, is also directing the FBI on
the scope of its background check.

“That seems like a clear conflict of interest,” said Carl Tobias,
the Williams Chair in Law at the University of Richmond and an
expert on federal judicial selection.

Norm Eisen, who served as the Special Counsel for Ethics
and Government Reform under President Barack Obama, said he helped vet “hundreds”
of presidential nominees when he worked at the White

“Every one got an FBI background check,” he added. “We
never told the FBI which witnesses they could and could not
interview. It’s not just [Democrats] who want an
investigation–so do Flake, Collins & Murkowski. But it must
be a real one.”

He was referring to GOP Sens. Jeff Flake, Susan Collins,
and Lisa Murkowski, all of whom have expressed concerns about
Kavanaugh’s nomination in light of the allegations against him.
All three backed a one-week delay in the final vote in order for
the FBI to investigate the claims.

But the way the investigation is currently being conducted,
said Susan Hennessey, the managing editor of the
national-security blog Lawfare, is a “sham.”

President Donald Trump disputed some of the reporting on
Saturday night, tweeting that he wants the FBI “to interview
whoever they deem appropriate, at their discretion.”

‘The FBI will do what the committee didn’t’

Christine Blasey Ford
Christine Blasey

Tom Williams-Pool/Getty

The four witnesses the FBI has been permitted to question
so far are Deborah Ramirez, Mark Judge, Leland Keyser, and PJ

Ramirez has accused Kavanaugh of exposing himself to her at
a dorm-room party at Yale during the 1983-1984 school

And Ford said Judge, Keyser, and Smyth were present at a
high school gathering in 1982 during which she alleges Kavanaugh
assaulted her.

Testifying before the Senate Judiciary Committee on
Thursday, Ford said she was pushed into a bedroom from behind and
that an inebriated Kavanaugh pinned her down on the bed, groped
her over her clothes, and covered her mouth when she tried to
yell for help. She said she was able to escape before things

Ford added that Judge, Kavanaugh’s longtime friend, was an
eyewitness to the attack and was also intoxicated at the time.

eyser and Smyth say they do not recall such a
gathering. Judge denies the incident occurred, and his and
Keyser’s lawyers said this week that their clients are ready to
fully cooperate with the FBI.

“The FBI will do what the committee didn’t and work to
corroborate aspects of what Dr. Ford said,” said Jeffrey Cramer,
a longtime former federal prosecutor in Chicago.

One of the first things the FBI will do, Cramer said, is talk to
Judge, who was the only other eyewitness to the alleged assault.

Experts said that while the night of the alleged attack is etched
in Ford’s memory, for other witnesses, it may have been like any
other night, which could be why Judge and others who Ford says
were there say they don’t recall the gathering.

But Ford testified to the committee that six to eight weeks after
the assault, she ran into Judge at the Potomac Safeway, a local
supermarket where he worked, and that Judge was uncomfortable and
“looked a little bit ill” when he saw her. She added, during her
testimony this week, that she believed she could be “much more
helpful” in providing details about her alleged assault if she
knew the exact date or time period that Judge worked at the

NBC News reported that the FBI has not been authorized to pull
Judge’s employment records.

“That is crazy,” Cramer said of the constraint. “If he worked at
the store where Ford says she saw him, it would corroborate one
part of her testimony. Albeit, that is not a critical element,
but it adds to the mix. The flip side is also true: if Mark Judge
never worked at the store, then it calls into question one part
of Ford’s story.”

Ford’s allegation is at the center of the FBI’s background check,
but Cramer said it’s critical for investigators to talk to
witnesses in addition to the four people currently on the list,
because it would help them establish a fact pattern about
Kavanaugh’s behavior in high school and college.

“Drinking habits are something that are regularly explored
as part of routine background checks (along with drugs),”
said the former FBI special
agent Asha Rangappa. “It probably came up in one of his earliest
checks, but without indications that it resulted in harm to
others would not have been pursued. Now that has changed.”

For instance, if the FBI spoke to multiple witnesses who
said they frequently saw Kavanaugh drink heavily or black out, it
could undercut a key part of his defense against the allegations.
Specifically, Kavanaugh says he is certain he did not assault
anyone, and does not ever recall doing so, because he never drank
so much that he could have forgotten his actions.

But his high school yearbook appears to contain multiple
references to partying and drinking that seem to contradict some
of Kavanaugh’s statements, many of which were made under oath.

Kavanaugh yearbook
of his high school yearbook are displayed as Supreme Court
nominee Brett Kavanaugh testifies before the US Senate Judiciary
Committee in the Dirksen Senate Office Building on Capitol Hill
September 27, 2018 in Washington, DC.

Saul Loeb/Getty Images

He said during his testimony that the term “Devil’s Triangle,”
which shows up on his yearbook page and is slang for sex between
two men and one woman, was a reference to a drinking game.
Kavanaugh added that another comment in his yearbook that reads,
“Judge — have you boofed yet?” referred to flatulence. 

Kavanaugh also faced questions about two other yearbook entries,
one that read “Georgetown vs. Louisville — Who Won That Game
Anyway?” and another tha read “Orioles vs. Red Sox — Who Won

In both cases, Kavanaugh told Sen. Sheldon Whitehouse, he didn’t
know which team won each game not because he was drunk, but
because he was having too much fun with his friends.

“By explicitly denying under oath that he ever drank to
excess, which goes to his veracity and credibility with regard to
Dr. Ford, he himself has made it a central issue,” Rangappa
said. “Had he been transparent
about it, that would likely not be the case.”

Many of Kavanaugh’s former classmates have since come forward to
the media and said what Kavanaugh told the Senate Judiciary
Committee does not square with what they witnessed when they knew
him in college.

None of those people are on the list of witnesses the FBI has
been permitted to question.

Rangappa suggested this was a deliberate move on the part of
Senate Republicans and the White House.

This is why the [White House] doesn’t want the FBI to
inquire about [Kavanaugh’s] drinking at Yale,” she said. “[Because] there are
classmates ready to directly contradict him, which would open him
up to perjuring himself to the Senate (and therefore a
disqualifier separate and apart from the Ford

Cramer agreed.

“There isn’t a finder of fact in the country that would hamstring
investigators like this,” he said. “It would be comical if it
wasn’t so important.”

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