The Six Worst Injustices of the Authoritarian Sham That Was the Kavanaugh “Investigation”
White House authoritiarianism defined the FBI's flimsy investigation.Photo by Drew Angerer/Getty Politics Features Brett Kavanaugh
The FBI has concluded its seventh background check of Supreme Court nominee, credibly accused sexual assaulter, Beach Week Ralph Club member, and Treasurer of the Georgetown Prep 100 Kegs Club Brett Kavanaugh, alias Bart O’Kavanaugh. The investigation, which Republican Senator Jeff Flake requested in a dramatic moment as Kavanaugh’s confirmation moved forward last Friday, has not done what Flake said he hoped it would by laying to rest any reservations about the accusations against Kavanaugh. If anything, the report created more doubt, both about the accusations and about the motivations of the people and processes that shaped the investigation.
Unsurprisingly, however, a number of Republican Senators said the report totally cleared Kavanaugh, including Senate Judiciary Chairman Chuck Grassley, who said it gave “no hint of misconduct.” Sadly, two of the three undecided Republicans — Jeff Flake and Susan Collins — also indicated they were satisfied with the investigation. Flake said the report contained “no additional corroborating information,” and Collins said that “it appears to be a very thorough investigation.” She did add, however, that “I’m going back later to personally read the interviews,” which seems like a pretty major oversight if you’re going to make a statement to the press.
It’s clear the investigation was all for show, a sham and opprobrious insult to our intelligence: It allows Republican Senators to pretend they care about the allegations of assault but still vote yes. To be clear, though, the only thing thorough here is the stench of BS smeared on yet another facade erected overnight in our Potemkin democracy. The investigation from the beginning was directed and restricted by the White House, and it demeans the American people and does injustice to justice itself. Let’s not pretend otherwise.
Here, then, in no particular order, are the major injustices of this investigation that should indeed outrage every thinking, feeling American.
1. It wasn’t an investigation
To be clear: This wasn’t an FBI investigation as we think of it. It was a supplemental background check. Those are two very different things.
An FBI background check doesn’t reach conclusions or make recommendations. It compiles relevant information about the subject, and for this one, FBI investigators, experts who do this for a living, weren’t allowed to determine what constituted “relevant information.” They had marching orders.
2. The FBI didn’t interview Ford or Kavanaugh
I mean. Dude. How can anyone take this seriously? I don’t need to explain why it might be critical for investigators to get Dr. Christine Blasey Ford and Brett Kavanaugh on record. Again, though, the report isn’t designed to reach conclusions, so the omission wouldn’t affect the aim, which is to collect information. But why, if Kavanaugh could help clear his own name, would the White House prevent the FBI from interviewing him?
3. Trump ran interference
After the Senate Judiciary Committee agreed to Flake’s request, an uncharacteristically subdued Trump weighed in on the decision. He called Dr. Ford’s testimony “credible” and “compelling,” and said he thought she was a “very fine woman.” He also stated he thought the FBI should interview anyone it believes to be relevant to its investigation, including Kavanaugh and all three women — Dr. Ford, Debbie Ramirez, and Julie Swetnick — who accused him of assault. However, he also made clear that it wasn’t his call:
The F.B.I. should interview anybody that they want within reason, but you have to say within reason. But they should also be guided, and I’m being guided, by what the senators are looking for.
This is critical: Trump admitted he wasn’t directing the investigation. He shirked his responsibility for any number or reasons, not least of which being he’s a lazy, lazy man who doesn’t want to deal with this. But he went further, using his office of chief executive to provide cover for the people who will actually determine the guidelines. At a rally this week, though, Trump tipped his hand, openly “mocking the “very fine Dr. Ford as supporters laughed and women waved “Women for Trump” signs.
Trump apparently didn’t absorb her story at all: “Indelible in the hippocampus,” she said of the assault, “is the laughter.”
Trump at this point was apparently confident the people he assigned to the investigation had ensured it wouldn’t turn up anything bad on Kavanaugh, so he could drop the good-guy act. Who were those people? Trump himself told us they would be only GOP senators — people who have an extraordinary partisan interest to clear Kavanaugh.
But someone else was involved, too.
4. Don McGahn is compromised
Don McGahn is White House counsel, and he chose and advocated for Kavanaugh’s nomination. A few weeks ago Trump fired him with the caveat he stay on to see the confirmation through. This week Trump charged McGahn with working with Senate Republicans to develop the guidelines for the FBI’s background check.
Trump fired McGahn because McGahn had spoken extensively with Special Counsel Robert Mueller regarding his investigation into whether Trump and those around him conspired to obstruct justice. McGahn himself is implicated in this conspiracy. He reworked Trump’s original letter firing James Comey (which focused on the Russia investigation) to instead shift the impetus to Jeff Sessions and Rod Rosenstein, whom McGahn instructed — literally giving them his own markups of Trump’s initial letter — to justify Comey’s ousting. And so it’s worth noting at this point that Kavanaugh, who worked with Ken Starr and attempted to indict President Bill Clinton in the 90s, has indicated he now doesn’t believe a sitting president can be indicted.
Mcgahn seemed particularly desperate to get Kavanaugh through. Which brings us to perhaps the biggest but least covered injustice of them all.
5. Kavanaugh lied to Congress under oath
Last Monday NBC reported that it appears Kavanaugh had anticipated Debbie Ramirez’s accusation as far back as July, weeks before Ramirez went public with her story on Sept. 23 in the New Yorker. Two days later, Kavanaugh told Congress under oath that he first learned of the allegations in that article.
However, texts saved by Kavanaugh’s classmate Kerry Berchem seem to reveal Kavanaugh had tried to pre-emptively construct a defense against Ramirez, reaching out via text to old friends in search of a photo from a 1997 wedding where he and Ramirez are shown smiling in a group hug. (Ramirez was reportedly creeped out at the wedding.) In one of the texts, Berchem’s friend said Kavanaugh had asked her, in advance of the story, if she would go on the record in his defense. Other messages reportedly reveal that Kavanaugh’s “team” had been in touch with former classmates in advance of the story.
Berchem, now a lawyer, told NBC she had tried to get those texts to the FBI but hadn’t heard back. She apparently emailed FBI agent J.C. McDonough a memo she’d written about the messages, and followed up with screenshots of the relevant texts. One such text was undoubtedly a Sept. 22 message to Berchem from a Kavanaugh friend, who said she had sent the wedding photo to “Brett’s team.”
Two days after the story dropped, Kavanaugh told the committee he was “probably” at a wedding with Ramirez. When asked if he’d interacted with her there, he answered, “I am sure I saw her because it wasn’t a huge wedding” but he doesn’t “have a specific recollection.” But more damning is this, from that same committee interview:
ORRIN HATCH: When did you first hear of Ms. Ramirez’s allegations against you?
KAVANAUGH: In the last — in the period since then, the New Yorker story.
Who would Brett’s “team” include? Well, obviously Don McGahn, and probably Senate Republicans such as Orrin Hatch. The very people directing the terms of the investigation are themselves possible witnesses into Kavanaugh’s lying to Congress, which is obviously a massive conflict of interest, and corrupt to the core. They eventually directed the FBI to speak to Ramirez, but they pointedly directed the FBI to not investigate whether Kavanaugh lied under oath.
It’s a felony to lie to Congress, whether you’re under oath or not.
But Berchem’s efforts to get the texts to the FBI lead us to something else: The many potential witnesses who haven’t been able to get information to the FBI.
6. The FBI didn’t interview many people at all
But Ramirez, who accused Kavanaugh of exposing his penis to her at a party and forcing her to touch it against her will, said she provided the FBI with a list of 20 people she said could corroborate her story. According to her lawyers, it appears the FBI didn’t follow up with any of them.
According to the Post, FBI agents interviewed three of the people Dr. Ford said attended the party where she was assaulted: Mark Judge, Patrick Smyth, and Leland Keyser. Agents also spoke with two other Kavanaugh chums he listed on a calendar as being at a party around the time Dr. Ford estimated the assault occurred: Chris Garrett, who went out with Ford for a time, and Tim Gaudette. (It’s implausible, by the way, that Kavanaugh didn’t know who Ford was, seeing how she dated his friend.)
The Post also reports that the FBI interviewed Mark Judge, a friend of Kavanaugh’s whom Dr. Ford placed in the room as an accomplice of the attack.
But the FBI didn’t even respond to potential witnesses who contacted the bureau offering evidence or corroborating testimony. One such person, Kenneth Appold, the James Hastings Nichols Professor of Reformation History at Princeton Theological Seminary, says he knew Ramirez and Kavanaugh at Yale and that he was “one-hundred-per-cent certain” he was told just after the alleged assault that it was in fact committed by Kavanaugh. Appold, who has won two Fulbright Fellowships and received a Ph.D. from Yale in religious studies, recalled details to the New Yorker that he said an eyewitness had told him at the time, which, according to Appold, line up with what Ramirez recalled of the evening. “I can corroborate Debbie’s account. I believe her because it matches the same story I heard thirty-five years ago, although the two of us have never talked.”
Appold said his roommate at the time, Michael Wetstone, now an architect, could confirm the story. Wetstone did indeed confirm it, telling the New Yorker that “it stood out in our minds because it was a shocking story of transgression.” Wetstone added that he also told his roommate about the assault.
The FBI contacted none of these people.
Here’s a letter from Ford’s attorneys listing ten important people the FBI didn’t contact. Here are more who have said they tried to offer the FBI information but were ignored. Here are still more who came forward in vain. And okay, here are more.
It’s quite clear this is a farce. The FBI was prohibited not only from following important leads, but from speaking to anyone who came forward with new information. It seems the White House limited the investigation to already-extant claims and people already named as being associated with those claims.
The FBI also apparently didn’t speak with Julie Swetnick, who made a third accusation against Kavanaugh last week. This week, Senate Republicans released to the public a disgusting statement from a local DC weatherman who slut-shamed Swetnick and described her sexual preferences in detail, casting them as deviant in an effort to discredit her accusation.
All that said, Kavanaugh’s confirmation seems all but inevitable. And should he be confirmed (the vote might happen as early as this weekend), Americans should be nauseated, humiliated, and offended by their government, which treats us as if we’re stupid cowards, and which is so cynical it actively obscured the truth for the past week in full public view. We should also express disappointment with the press, which, though publishing some truly admirable coverage here and there, let us down by not ringing alarms about the White House’s corrupt and authoritarian overreach.
I’ll leave the last word to Senator Flake, who summed up the whole mess neatly after leaving a meeting with Mitch McConnell: “I am a conservative. I would like to see Judge Kavanaugh confirmed. And I hope to be able to do that. But I want a better process… involving the FBI, reopening the background investigation, which is what so many of my colleagues and people across the country have been asking for.”