Since Trump announced his nomination, Brett Kavanaugh’s confirmation campaign has been defined by an obvious effort to prevent the Senate and public from learning about large chunks of his professional and personal life. The coverup has included setting an egregiously rushed schedule while concealing 90% of the documentary record from his public service, presenting false testimony, and orchestrating an absurdly hasty FBI investigation into claims of sexual assault without a final process for evaluating its findings. The effort has morphed into a desperate effort to get Kavanaugh on the Court before the Senate and public learn more disqualifying facts. Success in doing so will damage the Senate and the Court.
Following Kavanaugh’s nomination in July, Mitch McConnell and Chuck Grassley vowed to confirm Kavanaugh in September. That ambitious schedule, however, was unrealistic from the start in view of Kavanaugh’s extensive documentary record from his time in public service.
Chairman Grassley agreed to request documents from Kavanaugh’s two years in the White House Counsel’s office, but refused to ask for the far more voluminous records from Kavanaugh’s three years of service as Staff Secretary to George W. Bush. Rather than wait until late October for the National Archives to produce the requested documents, Grassley accepted documents hastily filtered through a partisan team assembled by Kavanaugh’s former deputy in the White House. Trump asserted executive privilege over 100,000 of those documents and Grassley limited circulation of a substantial percentage of the rest to Judiciary Committee members only. As a result, over 90% of Kavanaugh’s public service documents never reached committee members and fewer still reached the public. The missing documents contained sensitive and likely embarrassing information about Kavanaugh’s involvement in controversial matters.
Even the limited document production showed that Kavanaugh misled the Judiciary Committee in his D.C. Circuit confirmation hearings, regarding his involvement in the confirmation of judges and his knowledge of Bush’s warrantless surveillance program. Most egregiously, they confirmed that Kavanaugh was untruthful in denying that he received information regarding judicial nominees that was stolen from the files of Democratic senators by Republican staffers on the Judiciary Committee.
The lies multiplied when Kavanaugh testified in response to Dr. Christine Blasey Ford’s accusation of sexual assault. He claimed that witnesses had “refuted” Ford’s allegation when, in fact, they had said they did not remember the incident. He denied that the term “Renate alumnius (sic)” in his yearbook was sexual shaming of a woman. He lied about the meaning of “Devil’s Triangle.” He attributed a reference to vomiting to his generally weak stomach, rather than his drinking, the extent of which he consistently downplayed. He even falsely denied watching Dr. Blasey Ford testify. The choir boy image that Kavanaugh projected in his Fox News interview melted away. As the lies piled up, Kavanaugh demonstrated that he lies readily and transparently under pressure, to deflect criticism.
His lies contrasted starkly with Dr. Ford’s testimony. She was a reluctant witness who understood the devastating consequences of jumping into the politically toxic cauldron of a Supreme Court confirmation proceeding. She had nothing to gain, other than to serve her sense of civic duty. Her testimony was detailed, compelling, thoroughly credible, and devastating for Kavanaugh.
Republicans initially thought they could push through the nomination without referring Dr. Blasey Ford’s allegation to the FBI for investigation. They also thought they could end the matter by holding a show hearing without calling other witnesses, including Mark Judge, the other person Dr. Blasey Ford placed in the room during the assault. Although Judge sent the committee two letters (one signed by his attorney and one he signed) stating that he did not recall the incident, that’s a far cry from an FBI interview that would examine Judge’s recollection of details about the assault and Kavanaugh’s drinking, confront him with evidence to jar his memory, ask about others who might have been involved, and otherwise develop leads for further inquiry. It’s also a far cry from having Judge appear before the committee.
Sen. Jeff Flake threw a wrench into the coverup by announcing that he would support Kavanaugh in committee, but that he (and at least one other Republican senator) would vote for Kavanaugh on the floor only if the FBI reopened its background investigation for one week. Lacking the votes for final passage, McConnell had to agree.
The committee majority and White House Counsel, continuing their coverup, agreed that the FBI would be instructed to interview only four witnesses. Those restrictions appeared to collapse under Democratic and public pressure, yet the limits on the investigation remain unclear. The FBI must be permitted to interview anyone, including Kavanaugh, the second and third accusers, others they identify, and friends from Georgetown Prep and Yale who have described publicly Kavanaugh’s heavy drinking and aggressive behavior. That the FBI has only a week to do all of this is absurd and belies the notion that the committee is serious about finding the truth. The FBI must not open itself to charges that it has been used as a political pawn by doing anything less than a thorough investigation.
An FBI interview of Kavanaugh is essential, particularly following his lies before the committee. Although he denied the incident in his testimony, the trained interrogators from the FBI are far more adept questioners than are senators. While prosecutions for lying to the Senate are rare, lying to the FBI carries a real threat of criminal consequence. Indeed, Kavanaugh should take a polygraph. He has endorsed their effectiveness in investigations and would join the thousands of people who are administered polygraphs every year by the FBI during background checks.
Kavanaugh’s supporters continue their efforts to minimize the Senate’s and public’s knowledge of the facts. Mitch McConnell announced his determination to have the Senate vote on Kavanaugh this week. Since the truncated FBI investigation will not end until Friday, he apparently intends to vote late Friday or over the weekend. Democrats can force the filing of a cloture petition that will delay the final vote only into the weekend or early next week.
That means senators will have no time to study the results of the FBI investigation. Indeed, there is no process for the Senate to engage in meaningful evaluation of the FBI’s product. Had the Republicans not already forced the nomination out of committee, the FBI could report to the committee, which could then schedule interviews and hearings to receive testimony from the FBI and any significant fact witnesses. If Republicans were truly interested in taking the FBI’s findings seriously, they could refer the nomination back to committee. Otherwise, the FBI will send incomplete information to the Senate for instantaneous evaluation by each individual senator before a floor vote without committee input.
This is no way to produce a fully informed, deliberative result. But it sure is an effective way to cover up facts that would prevent a nominee’s confirmation.
Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.