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An Ex-FBI Agent Explains Everything Wrong with the Kavanaugh Probe

From witnesses being able to just avoid the feds until the clock runs out to hamstrung agents and an enraged public, it could get ugly.

by Matt Taylor
Oct 1 2018, 7:15pm

Left Image: (Photo by Melina Mara-Pool/Getty Images). Right Image: (Photo by Jim Bourg-Pool/Getty Images)

Last week, after being confronted in an elevator by survivors of sexual assault, conservative Arizona Senator Jeff Flake voted to advance Brett Kavanaugh's Supreme Court nomination anyway. But he did so with a caveat—Flake wanted to delay the full Senate vote on Kavanaugh by a week so the FBI could conduct an examination of sexual-assault allegations against the sitting federal judge. It looked on the surface like the Democrats might get what they had been calling for since Christine Blasey Ford accused Kavanaugh of attempting to rape her more than 30 years ago: an actual, serious investigation.



But it quickly became clear that, in addition to being limited arbitrarily to a week, the FBI probe might be even more constrained by the White House overseeing it. According to various reports over the weekend, the Bureau's new supplemental background check—not a criminal investigation—was severely confined from the jump, and some potential witnesses struggled to reach agents. The New York Times actually reported it might be finished as soon as Monday before Trump changed course and said agents could talk to "anybody that they want within reason." The president was responding to the uproar over the FBI inquiry reportedly only covering four interviews: Kavanaugh's erstwhile drinking buddy Mark Judge, who Ford said was in the room during her assault; P.J. Smyth and Leland Keyser, two others Ford said were at the gathering; and Deborah Ramirez, who told the New Yorker Kavanaugh exposed himself to her in their freshman dorm. (As of Monday afternoon, it remained unclear whether Julie Swetnick, who alleged Kavanaugh was present at parties where women were gang-raped, would be contacted by the FBI.)

For some perspective on just how crazy it is to limit an FBI "investigation," and whether that investigation would actually accomplish anything, I called up Michael German, a former FBI special agent who now serves as a fellow at the Brennan Center for Justice's Liberty and National Security Program at NYU. We talked about how Kavanaugh's greatest exposure here seems to be his possibly perjurious claims about drinking—a former Yale classmate and now professor Chad Ludington came forward to say the judge lied repeatedly at the hearings—and the extent to which the FBI's already-troubled reputation is once again on the line.

VICE: To what extent does the context in which the FBI is being asked to do this—after two years of bitter attacks from the president on its integrity—shape it or sort of give you pause before it even gets underway?
Michael German: So there are some aspects that aren't unusual. It isn't unusual for the White House to be very involved in a presidential appointment and very interested in what the FBI is doing in their background investigation and very clear about what they want to accomplish with the background investigation. It's not very unusual to have a very short turnaround period for a presidential nomination because obviously there's a whole procedure that has to involve the Congress and everybody else so you need to do it in a very short timeframe.

What is quite unusual is the expectation that there are some limits to what the FBI can investigate because that's not how an investigation works. In fact, it's the opposite of how it works. Typically, the FBI starts off with a list of references—we want to talk to these people that the subject of the investigation has given us a list of—and the last question you ask every witness is who are the other people that we should be talking to about this so that you get beyond the people that the nominee wants you to talk to. And often people are hesitant to bring up any derogatory information that they only know second-hand—one of the things they can do is tell you somebody who might know it firsthand. So it's an easy way for someone who doesn't want to be on record giving bad information about a person to give the FBI a lead that will get them to that same information.

Oftentimes, as you see, in this case there is some negative attention brought if you publicly identify yourself as criticizing the nominee. So many people want to do that without revealing their identity and the FBI has the ability to protect their identity.

Even if this probe didn't have restrictions imposed from on high, wouldn't this be an investigation any given individual might be more reluctant to participate in just because of the potential for exposure?
Exactly. And the other part is usually these are internal time limitations, not publicly announced ones. So if you're a witness who doesn't want to get caught, it's easy to evade the FBI for a week.

You could do that without necessarily lying and committing a crime.
Right. "Hey, I have a doctor's appointment on Tuesday, I have to be at work on Wednesday, Thursday, and Friday..." just string them along until you run out the clock.

You said it wasn't unusual to have a short timeframe but not that crazy, given the FBI's proclivity for this kind of work. After all, this isn't a criminal investigation—which I want to talk more about. But is it really crazy to do a background check in a week?
Not in a case like this where number one, the FBI has done a number of background investigations already, so they have a pretty strong roadmap of who they've talked to that provided derogatory information in the past. And where information has come to light later in the process so you're really just trying to nail down the larger story.

But it does seem like they did not catch even close to everything in the first few checks here, right? So from what you can tell, how badly did the background check process fail, versus this being a question of the FBI not having been as primed to look out for sexual violence before #MeToo?
Either or both could be correct, I think. It might be that somebody who knew some derogatory information didn't want to impede somebody from becoming a White House counsel or an appeals court judge but, when confronted with the idea that this person is going to sit on the highest court on the land for the rest of their life, would say, "OK, I actually have to tell this story now that I would have been reluctant to tell before."

But it could be that the FBI just botched it, or it could be that they did find indications of this but when they brought that to the White House or to members of Congress, it was determined that this was too long ago, that the memories were too fuzzy [for you] to have dissuaded anyone from either going forward with the nomination or moving through confirmation. So there might be other strands of investigation that they could have pursued harder if the principals, the clients, the White House, the Judiciary Committee members, wanted the FBI to pursue it.

Do whatever limitations remain in place make you less confident that they'll uncover the truth about the events they are allowed to investigate?
They're not trying to prove anything beyond a reasonable doubt. They're just trying to uncover the potential for derogatory information that the people deciding this will have to weigh.

That's how the process has been described by Kavanaugh and his allies, who cited a Joe Biden quote from 1991—that they don't reach a conclusion, just collect evidence. Is that an accurate portrayal of how the FBI approaches this kind of thing?
They're conducting interviews and when you're talking about allegations from years ago where there's no obvious place to obtain documents or other corroborating evidence, it's not necessarily essential to nail down what's true and what's not. In many cases, it's just providing information to the principal to make a determination about the principal's fitness for office. So if 15 people say, "This person has a very bad character or has expressed disloyalty to the United States or associates with known criminals and has drug and alcohol problems," there's no need to prove whether that's true and whether the person does actually have an alcohol problem or just gives the appearance of such, that's some derogatory information that you would bring back to the people nominating the person.

But it's certainly an investigation and the purpose of it is to obtain facts that are reliably used by the White House and members of Congress to determine whether the person's fit for office.

I'm glad you brought up drinking. It's been reported this narrow probe has been limited so as to avoid that subject as it relates to Kavanaugh. How relevant is said history in and of itself in this kind of background check, even generally speaking?
It's interesting because there is a process that FBI agents doing a background investigation follow and includes asking about alcohol use. So with the lowest type of government employee seeking some kind of clearance, they would ask those questions. So the idea that in this particular instance they would not ask those questions makes it that much more unusual and obviously in the normal part of the process, somebody's alcohol abuse could be a disqualifying aspect of the derogatory information dug up.

People are also suggesting this seems to be where Kavanaugh's most exposed to possible perjury allegations—his classmates have directly contradicted his claims about his own drinking and not blacking out and at least one went to the FBI.
That is certainly a factor particularly because there are speeches recorded that he gave where he referred to his heavy drinking in college and law school. So it's sort of hard to square with his later statements that he was not a hard drinker and certainly whether he was a drinker or not 20 years ago or 30 years ago matters less than whether he's willing to be less than candid about it in sworn testimony.

It seems that if there's any crime or even wrongdoing that's most likely to be nailed down in the span of a week or so, might be that he perjured himself, but it's not clear the FBI would have the time to show that or be permitted to.
Absolutely, and one of the things that's important to understand is the FBI's integrity is at stake here, as well. If it did these previous investigations and had not uncovered these things, that's a problem because this isn't the only background investigation they're doing and if we can't rely on the methodology the FBI used to gather information, we have to question all other appointments and nominees they've interviewed.

Does that create perverse incentives for them not to find anything? They don't necessarily want it to look like they missed something enormous here, right?
I think there's no way to depoliticize this investigation. It's incredibly political and it's being run out of FBI headquarters and they are the most directly connected to the White House and feel that political pressure most harshly. It is in their best interest to ignore any artificial limitations to their investigation and do the most thorough review they can do at this point and bring it forward in as public a manner as possible. Because it's going to be very very hard for anybody on the other side of whatever they provide to believe this was done in a fair manner. Particularly if there are obvious witnesses who are not interviewed.

But they were at least initially not supposed to interview the ex classmates about drinking, nor the third accuser.
And that would be a problem and make it so that any reasonable person could not have any faith that this was an appropriate and thorough investigation.

If the goal of this reinvestigation is to make sure that they have squared all the corners, failing to interview people who are identified in the media much less everyone else who's involved I think will backfire for them. Not just in undermining the appropriateness of this appointee but also [on] the FBI itself.

Do you actually expect anything to come of the probe, and do you think it's plausible some of its contents might be buried by Kavanaugh's boosters in the White House?
If the nomination goes forward, I would say it would be very hard to keep it under wraps forever. You might keep it under wraps until the vote, but eventually I think that would come out. If they don't move forward with the nomination, then it might be easier to keep it secret. But very little that people are very interested in seeing stays secret for long.

This interview has been lightly edited for length and clarity. Sign up for our newsletter to get the best of VICE delivered to your inbox daily.

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