4 Big Questions About the FBI’s 7th Kavanaugh Probe

Fred Lucas / October 01, 2018

President Donald Trump said Monday that it’s up to the FBI and the Senate to decide on the scope of the agency’s seventh background inquiry into Supreme Court nominee Brett Kavanaugh, this one focused on allegations of sexual misconduct.

In interviews with The Daily Signal, legal experts say the FBI probe can be completed within a week’s time, as proposed Friday by Sen. Jeff Flake, R-Ariz.

Flake, a member of the Senate Judiciary Committee, said the new investigation would be a condition of his vote to advance the Kavanaugh nomination.

Here’s a look at what to expect from the probe of accuser Christine Blasey Ford’s allegations, which is scheduled to close by the end of the week.

1. Can the FBI Inquiry Conclude in a Week?

“The FBI would be able to look into pretty much whatever they deem relevant to the allegation and any corroborating information of either the accuser or Brett Kavanaugh,” Cleta Mitchell, a Washington lawyer with 40 years of experience dealing with Congress and federal agencies, told The Daily Signal.

Mitchell said she is uncertain whether the probe, which began Friday evening, will be wrapped up in a week.

“The delay is a political decision that was forced on the majority by the actions of Jeff Flake and his unwillingness to pledge to support the Kavanaugh confirmation if this was not agreed to,” she said. “I suppose he can always change his mind and try to extract more concessions at the end of the week, but there is nothing about this that is anything except political negotiations.”

Only Kavanaugh and Ford have testified to the Senate Judiciary Committee.

The FBI likely will interview anyone with potential information connected to the matter, said Sidney Powell, a former federal prosecutor who was chief of the appellate divisions in the Western and Northern districts of Texas.

“The FBI will talk with the new people identified as having information,” Powell told The Daily Signal. “They have already done six prior investigations and none of this came up.”

But politically, she said, this probe may not settle the matter.

“We already know Dems will scream it’s not enough,” Powell said. “Their whole plan is delay.”

During a press conference Monday in the Rose Garden, Trump said he wanted both a thorough and expedited probe of his nominee, who has been a judge on the D.C. Circuit Court of Appeals since 2006.

“I want them to do a very comprehensive investigation, whatever that means according to the senators and the Republican majority,” Trump said, adding:

I want them to do that. I want it to be comprehensive. I think that’s actually a good thing for Judge Kavanaugh. Having said that, I’d like it to go quickly, and the reason I’d like it to go quickly is simple. Because it’s unfair to him at this point.

What his wife is going through, what his beautiful children are going through, is not describable. It’s not fair. It’s fair to me because you’ve been doing it to me from Day One. For me, it’s part of my job description to handle this crap.

Ford has said Kavanaugh sexually assaulted her at a small gathering when they were both teens. She said he held her down on a bed, groped her, tried to remove her clothes, and put a hand over her mouth when she called for help.

The probe could wrap in a week, but the question is whether it will, said Ron Hosko, a former assistant director of the FBI.

“It depends on what the scope is and how they follow up on the leads,” Hosko told The Daily Signal. “Will they get more information about who was at the party, who took her to the party, and who took her home? If the scope opens up, it could be longer.”

Hosko said that if Sen. Dianne Feinstein, D-Calif., had referred the matter to the FBI after receiving Ford’s confidential July 30 letter, the bureau could have conducted an investigation much earlier and Ford could have remained anonymous.

Trump also called out Feinstein during his press conference.

“Dianne Feinstein knew about this two months earlier,” the president said, adding:

If she wanted a thorough investigation, we had all the time in the world. She didn’t have to wait until it [the confirmation process] was closed essentially. She should have said, ‘Listen, I have a problem. I have this report. I’d like the FBI to look at it while we’re doing the hearings.’

We had two months. She didn’t do that. She waited until we were closed. Then she probably leaked it, based on her very bad body language the other day. More importantly, in a sense, [is] for her to have waited that amount of time. And now, for you Democrats—and I guess I’m including you too in the media, I consider you part of the Democrat Party—to say you want more time for the FBI. If you wanted more time for the FBI, why didn’t Dianne Feinstein bring this up?

2. How Many Allegations Will the FBI Probe?

In an emotionally charged Judiciary Committee hearing Thursday, Ford delivered dueling testimony from Kavanaugh.

Ford is not the only accuser. Two other women have made accusations of sexual misconduct against Kavanaugh.

Deborah Ramirez said when the two were Yale freshmen, Kavanaugh exposed himself in front of others during a party where both had been drinking. Julie Swetnick—represented by lawyer Michael Avenatti, lawyer for porn star Stormy Daniels—claimed a teenage Kavanaugh was involved in drugging young women and multiple gang rapes at parties in Montgomery County, Maryland.

The FBI reportedly is looking into the Ramirez allegation.

Kavanaugh has denied all three allegations, and none of the women provided evidence.

Trump said he has no problem with the FBI interviewing all three women.

“It wouldn’t bother me at all. It depends. I don’t know all three accusers,” Trump said, before referring directly to Swetnick. “The third one I don’t know much about. I’ve heard the third one has—I have no idea if this is true—has very little credibility. If there is any credibility, interview the third one.”

3. What About Ford’s Inconsistencies?

Powell, the former Texas prosecutor and author of the book “Licensed to Lie: Exposing Corruption in the Department of Justice,” said the FBI might not take its review this far.

“In a way, I hope it does, as false statements like this hurt so many people—especially women who have real and serious claims,” Powell said. “There is an additional problem with recovered memory as it is highly susceptible to manipulation.”

Rachel Mitchell, the Arizona sex crimes prosecutor tapped by Senate Judiciary Chairman Charles Grassley, R-Iowa, to question Ford, issued a report Monday noting multiple inconsistencies and contradictions in Ford’s account of what she said was a 36-year-old incident.

Washington lawyer Cleta Mitchell, who is no relation, said she anticipates the FBI inquiry could be a problem for Ford.

“Most definitely. If the FBI does a thorough job, then Ford’s credibility should certainly be on the table for review, and witnesses interviewed about that period of her life,” she said. “So yes, this could definitely boomerang and I rather suspect it will—since I do not believe her.”

Ford gave conflicting accounts to The Washington Post and to the Senate committee. She couldn’t recall how she got home from the party or where it was held. Everyone she claimed was at the party denied knowledge of it.

Ford also claimed to have a fear of flying as a result of the alleged sexual assault. However, she testified before the committee that she flies to the mid-Atlantic at least once a year to visit her family and has has flown to Hawaii, French Polynesia, and Costa Rica for vacations.

Hosko, the former FBI assistant director, said he doubts inconsistencies from an alleged incident in 1982 would prompt legal problems for Ford. But, he said, it’s critical that she answer more questions.

“I don’t know that the FBI has ever had a full interview with this lady to clear up all these issues of inconsistencies and how she got there,” Hosko said. “Her credibility is key to this, and you don’t probe her credibility by just accepting everything she says.”

4. What Should We Expect From FBI Report?

As many senators have noted, an FBI investigation will not draw any conclusions after agents interview multiple people.

The FBI does background checks to determine whether the nominee might pose a risk to the national security interests of the United States, according to the Justice Department. Since 1993, Kavanaugh has been the subject of six other FBI investigations for various federal jobs, including in the White House and for his appeals court judgeship.

“The report will lay out what interviewees offered,” Hosko said.

Unlike the Senate committee, the FBI can’t compel anyone to speak, he noted.

“This has turned into a circus. Some people might choose not to participate with the FBI, fearing their name will be public or that someone else will remember events differently,” Hosko said. “A lot of control is in the hands of people being interviewed. Democrats will be highly motivated to say this is not complete and the scope is too narrow. It’s their goal to defeat the nomination.”

The Judiciary Committee’s staff could have handled the matter and bringing the FBI back into the process was political, Thomas Jipping, deputy director of the Edwin Meese III Center for Legal and Judicial Studies and senior legal fellow at The Heritage Foundation, wrote in a commentary for The Daily Signal.

“The people actually responsible for investigating these allegations are the Judiciary Committee’s own investigative staff and they have been hard at work for nearly two weeks. The list of steps they have taken is nearly six pages long,” Jipping wrote, adding:

Democratic staff, for example, refused to participate in the Sept. 17 interview with Kavanaugh. Democrats say they want the FBI to interview Mark Judge, who Ford says participated in assaulting her but who denies even being present. But, unlike Republican staff, Democratic staff have never sought to speak to him themselves.