Dr. Christine Blasey Ford has offered to testify before the Senate Judiciary Committee regarding her allegation that Brett Kavanaugh sexually assaulted her when they were teenagers. Before she does so, however, Ford’s attorney has asked that the FBI review the issues she has raised regarding Kavanaugh’s suitability to sit on the nation’s highest court.
This is, by any measure, a reasonable request. Ford is literally inviting a federal investigation into the allegations she has made. She is asking that the investigation be undertaken prior to the Senate’s political consideration of the matter. There is precedent for this. In 1991, when law professor Anita Hill’s sexual-harassment allegations against Supreme Court nominee Clarence Thomas were revealed at a later stage in his confirmation process, a spokeswoman for then-President Bush announced that “in consultation with the committee, the White House promptly directed the FBI to conduct a full, thorough and expeditious investigation.” As Senate Democrats remind us, reopened Judiciary Committee hearings in 1991 took place “after the White House directed the FBI to conduct an immediate investigation and that investigation was completed.”
In regard to the Kavanaugh case, Anita Hill argues now that an FBI investigation is “absolutely…the right move.” She says: “The hearing questions need to have a frame, and the investigation is the best frame for that; a neutral investigation that can pull together the facts, create a record, so that the senators can draw on the information they receive to develop their questions.”
Unfortunately, Senate Judiciary Committee chairman Chuck Grassley (R-IA) has chosen to play politics rather than to pursue the facts. Grassley is demanding that Ford bend to his demand for an all-or-nothing hearing on Monday or risk losing the chance to testify.
That is precisely what they do. That is why the agency is called the Federal Bureau of Investigation. Cases are opened and closed and reopened. Inquiries are extended. Investigations are expanded. That’s how it works. As Judiciary Committee Democrats explain it: because “the FBI conducts background investigations of nominees at the White House’s request…. the President can request an appropriate follow-up, even after a background investigation may be closed.”
The investigation of Judge Kavanaugh needs to be extended and expanded—not merely in response to the issues that Ford has raised but also in response to mounting evidence of what former Judiciary Committee member Russ Feingold refers to as “the nominee’s disturbing willingness to avoid the truth.”
Feingold, a former Democratic senator from Wisconsin who was highly regarded for his fairness and commitment to bipartisanship, is highlighting the fact that there is now “clear evidence showing that Kavanaugh lied under oath during the 2006 confirmation hearing for his spot on the US Court of Appeals for the DC Circuit. I was one of the senators on the Judiciary Committee who questioned him.”
Feingold questioned Kavanaugh, who had played a critical role in advancing the Bush administration’s judicial nominations, about his handling of the controversial nomination of Charles Pickering Sr. to serve on the Fifth Circuit. Kavanaugh feigned ignorance, claiming that “This was not one of the judicial nominees that I was primarily handling.”
In fact, as Feingold notes in a Huffington Post essay, “newly released emails show that Kavanaugh appeared to be the primary person handling Pickering’s nomination, at least by 2003, and was heavily involved in pushing for his confirmation as early as March 2002. There are emails showing that Kavanaugh coordinated meetings with and about Pickering; that he drafted remarks, letters to people on the Hill and at least one op-ed for then-White House Counsel Alberto Gonzales about Pickering; that he advised Gonzales on Pickering strategy; and much more.”
Feingold is not alone in expressing concern about Kavanaugh’s deceptive statements to the Senate. The senior member of the chamber, Vermont Democrat Patrick Leahy, says:
I have never been more concerned about a Supreme Court nominee’s basic willingness and unwillingness to be truthful under oath. Judge Kavanaugh repeatedly testified that during his time in the Bush White House, he never had reason to believe he was benefiting from information that had been stolen from Democrats. But he repeatedly received information clearly marked “highly confidential” and even one e-mail with the subject: “spying,” this from a Republican aide behind one of the biggest thefts in Senate history. A scandal in which Republican aides on the Senate Judiciary Committee stole 4,670 files from six Democratic senators, including myself. Documents show that his testimony was almost certainly false.
Four veteran Senate aides—Bob Schiff, who served as chief counsel for Feingold; Lisa Graves, who served as chief counsel for nominations for Leahy; Kristine Lucius, who served as nominations counsel and staff director for Leahy; and Jeff Berman, who served as chief counsel for Senator Charles Schumer—have written that
We watched the testimony of Judge Brett Kavanaugh before the Senate Judiciary Committee with dismay and disbelief. His many misleading and false statements cast serious doubt on whether he should be confirmed to a seat on the US Supreme Court. The events of this weekend only make it clearer the Senate must not act in haste. At the very least, the Senate should not vote on his nomination until still-secret documents from his time in the George W. Bush White House are made public and until the sexual misconduct allegations that have just become public are thoroughly investigated.
This is not about the dance many nominees attempt in order to avoid expressing an opinion on legal issues they might face on the court. It is about a pattern of deceptive answers on a range of questions about his past activities and agenda to change our laws through the courts. We believe this deception, both earlier this month and in his 2004 and 2006 nomination hearings for the DC Circuit, was intentional. His truthfulness, of course, is very much at issue in the latest allegations against him, since he has categorically denied the sexual assault of which he is accused.
There are so many questions that need to be asked and answered that Senator Sheldon Whitehouse, a former United States Attorney for the District of Rhode Island and Rhode Island attorney general, has called for a halt to the confirmation process until they can be addressed.
After Ford came forward with her story, Whitehouse said, “This requires a pause, at a minimum, in the unseemly, special-interest-funded rush to put Brett Kavanaugh on the Court. Kavanaugh’s blanket denial cannot be reconciled with [Ford’s] specific recollections, and the FBI needs time to take proper witness statements.”
“Lying to an FBI agent in a formal interview is a crime, and an impeachable offense,” explained Whitehouse.
So, too, is lying to the US Senate. The fact that Kavanaugh now stands accused of making “misleading and false statements” during sworn testimony to the Senate is, in and of itself, disqualifying—and impeachable. It is also instructive. If there are concerns about Kavanaugh’s “basic willingness and unwillingness to be truthful under oath,” California Senator Dianne Feinstein and her Democratic colleagues on the Judiciary Committee are duty bound to warn that “This nomination should not be railroaded through the Committee in an effort to meet an artificial, outcome based deadline.”