clock menu more-arrow no yes

Did Brett Kavanaugh perjure himself? The debate, explained.

We keep having to talk about whether Kavanaugh lied to Congress.

Judge Brett Kavanaugh testifies to the Senate Judiciary Committee during his Supreme Court confirmation hearing.
Win McNamee/Getty Images

As federal investigators continue their fact-finding inquiry into multiple allegations of sexual misconduct against Supreme Court nominee Brett Kavanaugh, a more public investigation is underway: Has Kavanaugh repeatedly lied to Congress?

The latest instance putting Kavanaugh’s credibility into question comes in an NBC report Tuesday detailing communication between Kavanaugh, his team, and college friends to refute Deborah Ramirez’s claim that Kavanaugh exposed himself to her at Yale, before she had come forward with allegations in an article in the New Yorker.

This account is in direct contradiction to Kavanaugh’s testimony last Thursday, when he angrily denied the multiple allegations of sexual misconduct brought against him and said he learned of Ramirez’s claim through the New Yorker story:

SEN. ORRIN HATCH (R-UT): When did you first hear of Ms. Ramirez’s allegations against you?

KAVANAUGH: … In the New Yorker.

HATCH: Did the ranking member [Sen. Dianne Feinstein (D-CA)] or any of her colleagues or any of their staffs ask you about Ms. Ramirez’s allegations before they were leaked to the press?

KAVANAUGH: No.

However, two friends of Kavanaugh’s — Kerry Berchem and Karen Yarasavage — were in contact with the Supreme Court nominee and his team, according to text messages obtained by NBC:

In a series of texts before the publication of the New Yorker story, Yarasavage wrote that she had been in contact with “Brett’s guy,” and also with “Brett,” who wanted her to go on the record to refute Ramirez. According to Berchem, Yarasavage also told her friend that she turned over a copy of the wedding party photo to Kavanaugh, writing in a text: “I had to send it to Brett’s team too.”

In an interview with Republican congressional staff two days after Ramirez went public, Kavanaugh said he had “heard about” Ramirez calling college friends about the alleged incident. It’s not clear if he had heard about that after the allegations went public.

This latest back-and-forth is yet another discrepancy in Kavanaugh’s story. For two weeks, he has categorically denied engaging in any sexually inappropriate behavior, from Ramirez’s allegations to those of Christine Blasey Ford, who said he drunkenly assaulted her in high school. He’s also denied that he drank excessively (to the point of blacking out) in high school and college — claims that several of his classmates and friends have refuted.

As the FBI continues to investigate the allegations, Democrats are also calling for an investigation into Kavanaugh’s “truthfulness” — something Republicans have slammed as moving the goalposts. Whether a formal investigation is actually instigated, these new developments continue to chip away at Kavanaugh’s credibility.

“Taking a step back, the fact that we are having two rounds of serious conversations of whether or not he is perjuring himself is deeply troubling. This is a job interview to the highest court in the land,” Jessica Levinson, a law professor with Loyola Law School, said.

Kavanaugh’s truthfulness has repeatedly come into question

These text messages detailing Kavanaugh’s knowledge of Ramirez’s allegations aren’t the first time his truthfulness has come into question. Here are five other instances where discrepancies in Kavanaugh’s testimonies have been raised.

1) Kavanaugh’s drinking: The Supreme Court nominee has been adamant that while he enjoys beer and perhaps at time drank “too many,” it was never to the point of passing out, blacking out, or even causing slight lapses in memory.

His characterization of drinking has been refuted by multiple friends and past roommates, as Vox’s Emily Stewart explained. He grew “belligerent and aggressive” as a drunk, according to Chad Ludington, one of Kavanaugh’s former classmates.

Liz Swisher, another former Yale classmate, recounted to CNN of Kavanaugh’s drinking: “There’s no problem with drinking beer in college. The problem is lying about it.”

2) His yearbook: During the testimony about the sexual allegations, Democrats asked Kavanaugh to define several lines in his yearbook, which appeared to reference sexual activities. As Vox’s Alex Abad-Santos explained, the word “boof,” a slang term that many have defined to mean anal sex, Kavanaugh defined as “flatulence.” Asked about the phrase “Devil’s Triangle,” which commonly refers to sex between two men and one woman, Kavanaugh said it was a drinking game akin to Quarters.

While he and other classmates admitted the yearbook was full of exaggerations, those definitions Kavanaugh provided under oath didn’t hold up with classmates at Georgetown Prep, as the New York Times’s David Enrich reported:

3) Kavanaugh’s involvement in the nomination of a controversial anti-Roe v. Wade judge: In 2004, Kavanaugh said he did not “personally” handle the nomination of Judge William Pryor, who currently sits on the 11th Circuit Court of Appeals (which covers Alabama, Georgia, and Florida) and is somewhat of a liberal bogeyman, famously calling Roe v. Wade and the legal right to abortion ”the worst abomination in the history of constitutional law.”

Kavanaugh, who worked in Bush’s White House counsel office in the early 2000s, distanced himself from Pryor’s nomination in 2004, saying during his own confirmation hearing, “No, I was not involved in handling his nomination.” But as the Washington Post’s Seung Min Kim first reported, between 2002 and 2003, Kavanaugh is included in several emails referencing the Pryor nomination. In one exchange between Kavanaugh and White House aide Kyle Sampson, Kavanaugh is asked: “How did the Pryor interview go?” He responded, “Call me.” In another email chain, Kavanaugh is included in a conversation about a conference call to “coordinate plans and efforts” around Pryor.

4) There’s also the case of the improperly obtained Democratic files, detailing strategies for opposing Bush’s judicial nominees in the 2000s, which a Republican Senate aide circulated with White House staff.

In 2004, Kavanaugh claimed that he had never seen “any documents that appeared ... to have been drafted or prepared by Democratic staff members of the Senate Judiciary Committee.” But as Vox’s Dylan Matthews explained, an email between the Republican staffer and Kavanaugh showed him receiving some of the documents.

5) Democrats have also tried to interrogate Kavanaugh’s possible involvement in the Bush administration torture policy. As Vox’s Li Zhou explained, in 2006 Kavanaugh said, “I was not involved and am not involved in the questions about the rules governing detention of combatants … and so I do not have the involvement with that.” However, Sen. Dick Durbin (D-IL) cited two news reports that said Kavanaugh was present at a meeting on whether US enemy combatants should be given lawyers while they are being detained.

There’s a high legal bar for perjury — but this could still influence senators’ decisions

Democrats on the Senate Judiciary Committee have called on the FBI to investigate “the truthfulness of statements made in relation to these allegations.”

This isn’t a formal investigation into perjury. For one, the standard for perjury has an “excruciatingly high bar,” Levinson said. It’s not a question of credibility or even contradictory statements, but rather proving that someone “willfully lied under oath.” To claim perjury, the prosecutor would also have to prove that the lies had direct relevance to the testimony.

“It’s different from me and you saying, ‘Oh, come on,’” Levinson said.

That’s why many of Kavanaugh’s comments so far have probably been too fuzzy to actually pursue any perjury prosecution. For example, in the case with Pryor’s nomination, Miriam Baer, a law professor with Brooklyn Law School, told Matthews that “the fact that Kavanaugh apparently was invited to a meeting (and it is unclear from the email how many other people were invited) doesn’t necessarily demonstrate that Kavanaugh’s statement was untrue, much less that he intentionally lied or misled.”

But there are some areas that could be considered grounds for perjury, particularly in his most recent testimonies about alleged sexual misconduct. Kavanaugh was directly asked about drinking in high school and to define items in his yearbook, which are related to the allegations of assault. If he deliberately misled a senator, that could qualify as perjury. Then again, it’s not an easy case.

But whether the contradictions in Kavanaugh’s statements fit the legal definition of willfully lying under oath, Democrats have been trying to make the case that Kavanaugh’s credibility should be called into question — and that his temperament and truthfulness aren’t as squeaky clean as his judicial record.

That could have consequences: In an interview with 60 Minutes, Sen. Jeff Flake (R-AZ) said that if the FBI investigation showed that Kavanaugh was in fact lying during his testimony, then his nomination should be dropped. It would only take two “no” votes from Republicans to tank his nomination.