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 known.
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 week.
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 House.
“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 is a “sham,” said Susan Hennessey, the managing editor of the national-security blog Lawfare.
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’
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 Anyway?”
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 allegation).”
“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.”