A “supplemental” FBI investigation has now been ordered. To be sure it is limited both in scope and time. The investigation can only pursue “credible allegations of sexual assault,” against Judge Kavanaugh and it must be completed within a week. It it is not clear at this point what “credible” means and how it circumscribes the scope of the investigation—for example, can the allegations of Deborah Ramirez and Julie Swetnick also to be investigated, in addition to those of Dr. Christine Ford? As of this writing, it appears that the Senate Judiciary Committee considers that it’s up to the FBI to define “credible” to be whatever it wants, but it is not clear if the White House will go along with that. Moreover, the investigation is not a criminal investigation. It is only a background investigation, which by its very nature limits the resources and tools that the FBI can bring to bear. For instance, the FBI cannot use subpoenas or grand juries, and while potential character witnesses and other interviewees go on record under penalty of perjury, they may choose to give vague answers or claim an inability to recall details, which will be all the more unimpugnable since the investigation pertains to alleged events of several decades ago.
In spite of all this, there is enough for the FBI to go on, even if they were to further limit themselves in scope to:
- Dr. Ford’s testimony to the Senate Judiciary Committee and various submissions to the committee (such as the detailed allegation, the polygraph report, etc.)
- Judge Kavanaugh’s opening remarks and testimony, and
- Statements made by Judge Kavanaugh to the Senate Judiciary Committee during private interviews when the committee conducted its own internal investigation into various allegations against him.
The simple indisputable fact is that Ford’s allegations and Kavanaugh’s rebuttal cannot both be simultaneously true. As such, the FBI may focus the brunt of its investigation on details of Ford’s and Kavanaugh’s sworn statements that are mutually exclusive but can be corroborated or refuted by witnesses or by documentary evidence. For example, the Washington Post has made a somewhat persuasive case, assuming that Dr. Ford is telling the truth, to build on items listed in Judge Kavanaugh’s own 1982 diary, to suggest that the assault on her happened on July 1, 1982. The article stops short of identifying the house where the alleged assault may have taken place; the FBI will have no restraints on testing out such theories with potential witnesses.
The burden of proof does not weigh equally on Dr. Ford and Judge Kavanaugh. In a criminal trial, which this background investigation almost certainly will not lead to, Judge Kavanaugh would be granted the presumption of innocence. In this situation he himself perceived that the onus was on him “to clear his good name” and he chose to present himself as an implausibly virtuous choir-boy in a Fox TV interview and in his own opening remarks. Perhaps he and the GOP gambled on there never being an FBI investigation to fact-check major and minor claims when they came up with his “Norman Rockwell-like good boy” image (thanks to the syndicated columnist Mark Shields for this characterization). If so, they may well have calculated wrong. Senator Feinstein has asserted that Judge Kavanaugh’s temperament and invocation of conspiracy theories should by themselves rule him out of contention for the Supreme Court; if the FBI finds, as they probably will, that not all Judge Kavanaugh’s statements in his self-testimonial were true, background investigation will report them and weigh against him.
As Ms. Rachel Mitchell, the prosecutor who questioned Dr. Ford, discovered, there were not many critical details that could be used as leverage to pry open Dr. Ford’s testimony and cast doubt on the main allegation. Undoubtedly, Ms. Mitchell was hampered by the need to not seem insensitive. Still, the main problem for Judge Kavanaugh is that Dr. Ford gave a remarkably compelling, consistent and self-contained testimony; even President Trump found her “credible,” which is rather telling. Dr. Ford’s testimony can be refuted only by Judge Kavanaugh and Mark Judge and, given the circumstances of her allegation against them, their statements cannot automatically disqualify her version.
In contrast, while Judge Kavanaugh’s impassioned opening remarks may have played well to Trump’s base of supporters and may also have provided cover for the fence-sitting Senators to vote for him, his passion will be quite irrelevant to FBI investigators. In an FBI interview, Judge Kavanaugh can neither filibuster questions nor claim outrage to duck questions, as he did during the hearing. An FBI interview will not have friendly breaks after every five minutes, and may feature tangential questions and potentially dangerous nonsequiturs. If Christine Ford is found to have equivocated on little things (for example, her fear of flying) it would not matter as much as Judge Kavanaugh’s white lies (for example, whether he ever got so drunk that he could not remember things, or whether he lied about “boofing,” “Devil’s Triangle,” and “FFFFFFFourth of July.”) Judge Kavanaugh’s task is made harder by the fact that Mark Judge has now said that he will cooperate with the FBI; to be certain, Mark Judge will have his attorneys present during the interview. They may ask him to take the fifth on some questions, something that will damage Judge Kavanaugh’s credibility in ways that he cannot control.
In summary, if the FBI investigation is inconclusive in its report on the serious charges against Judge Kavanaugh but finds that he had committed perjury on inconsequential details it can still derail his nomination.
Judge Kavanaugh has an easy way out, and I am guessing he will take it. He can just withdraw his nomination. This will preemptively cancel the FBI investigation, while providing Judge Kavanaugh with an honorable way out. He can cite a whole host of reasons for wanting out: that he cannot put his family through hell for another week; that it was all a hit job orchestrated by the Democrats, but being a patriot he himself does not wish to subject the country to even more partisan fighting on his account; that in the past two weeks, he has learned who his true friends are and the people that he has unwittingly hurt; that God has other plans for him. Etc, etc.