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How Brett Kavanaugh's testimony on blackout drinking could bring him down

False statements under oath are a problem, even if they're about drinking.

by Carter Sherman and Tess Owen
Oct 1 2018, 7:11pm

The FBI background investigation into Supreme Court nominee Brett Kavanaugh is now officially underway. But while agents try to determine whether Kavanaugh was being truthful when he said he never sexually assaulted anyone, there’s another question lurking: Did he lie about anything else?

Throughout his testimony last Thursday, Kavanaugh insisted he'd never drunk alcohol to the point of blacking out. “I drank beer with my friends. Almost everyone did. Sometimes I had too many beers,” he told the 21-member Senate Judiciary Committee. “Sometimes others did. I liked beer. I still like beer. But I did not drink beer to the point of blacking out, and I never sexually assaulted anyone.” Christine Blasey Ford, in her testimony earlier that day, alleged a drunken Kavanaugh tried to rape her at a teen party in the 1980s.

But his drinking claim has come under fire as a number of Kavanaugh’s former classmates at Yale have said they remembered the judge as a heavy drinker. And while teenage binge-drinking isn’t usually grounds to disqualify a Supreme Court nominee, making false statements — under oath, before the Senate Judiciary Committee — very well could be.

“If Judge Kavanaugh is shown to have lied to the committee, the nomination is over?” Scott Pelley asked Arizona Sen. Jeff Flake, a Republican, and Delaware Democratic Sen. Chris Coons in a Sunday episode of CBS's "60 Minutes."

Read: Brett Kavanaugh crossed a partisan line and the Supreme Court may never recover

“Oh, yes,” replied Flake. Flake pushed the Senate to ask President Donald Trump to reopen the FBI probe into Kavanaugh's background on Friday; without Flake’s support, Kavanaugh may lack the 51 Senate votes he needs for confirmation.

“I would think so,” Coons added.

“If [investigators] found that he lied about his drinking habits, it could be fatal to his nomination”

The White House counsel initially set limits on the fresh background probe into Kavanaugh, which included a list of witnesses that agents were permitted to question. But by Monday, Trump expanded his original directive by giving the FBI authorization to interview anyone they want, the New York Times reported, as long as agents wrap up their investigation in one week.

Several former Yalies have publicly doubted Kavanaugh’s claims about his drinking habits. Liz Swisher, chief of gynecologic oncology at University of Washington School of Medicine, called Kavanaugh a “sloppy drunk.” “There’s no medical way I can say that he was blacked out,” she told the Washington Post. “But it’s not credible for him to say that he has had no memory lapses in the nights that he drank to excess.”

Devil's triangle

James Roche, who roomed with Kavanaugh during their freshman year, told the New Yorker that Kavanaugh was “frequently, incoherently drunk.” On Sunday, Chad Ludington, who said he drank with Kavanaugh at Yale, issued a statement to the New York Times, writing, “I can unequivocally say that in denying the possibility that he ever blacked out from drinking, and in downplaying the degree and frequency of his drinking, Brett has not told the truth.”

Legal experts and acquaintances have suggested that Kavanaugh also gave misleading testimony about his yearbook entry, which referenced a “Devil’s triangle” and “boofing.” A “devil’s triangle” is generally used to describe a threesome; Kavanaugh testified that it was the name of a drinking game that he played with his friends in high school. Similarly, “boofed” is a term that’s often used to describe ingesting drugs or alcohol through the rectum. Kavanaugh testified that it was just another word for flatulence.

Read: All the ways Brett Kavanaugh has denied the sexual assault allegations against him

Former classmates who’ve contradicted Kavanaugh’s characterization of his collegiate drinking habits were not on the list of witnesses initially provided by White House counsel, NBC reported. Investigators have, however, already reached out to Deborah Ramirez, who said Kavanaugh drunkenly exposed himself to her and thrust his penis into her face at a Yale party.

“If [investigators] found that he lied about his drinking habits, it could be fatal to his nomination,” Ron Hosko, former assistant director of the FBI, told VICE News. “They’re looking for anything derogatory. That’s relevant information because it speaks to his character and to some extent his reputation, which until very recently has been stellar.”

False statements

The American Bar Association advises attorneys not to make “false statements” in court; lawyers who lie can face action from state disciplinary committees. And while impeaching a federal judge is rare — only eight have been formally kicked off the bench over the last two centuries — making false statements is one of the most commonly cited reasons for doing so, the Brennan Center for Justice found. Kavanaugh, who’s spent more than a decade on the U.S. Court of Appeals for the D.C. Circuit, has been accused of lying under oath in the past, particularly about his time in the George W. Bush White House.

Read: "Shocking and disheartening:" What college students think of the Kavanaugh hearings

And perjury is, of course, a federal crime that can carry a sentence of up to five years in prison. But experts say that if Kavanaugh lied about his drinking habits last week, it’s unlikely to lead to federal perjury charges. Alcohol consumption can be a grey area, Hosko said. What might seem like excessive drinking to one person could be totally normal to someone else.

“I would extremely doubt that the Justice Department would view a mischaracterization of his drinking as an indictable offense,” said Jeffrey Danik, a former FBI supervisory agent who spent 28 years at the Bureau. “The worst thing that’s going to happen here is that he’s not going to get the nomination.”

Cover image: Supreme Court nominee Brett Kavanaugh testifies before the Senate Judiciary Committee on Capitol Hill on September 27, 2018 in Washington, DC. Kavanaugh was called back to testify about claims by Dr. Christine Blasey Ford, who has accused him of sexually assaulting her during a party in 1982 when they were high school students in suburban Maryland. (Photo by Andrew Harnik - Pool/Getty Images)