The FBI is currently investigating sexual assault allegations that have been brought against Supreme Court nominee Brett Kavanaugh, and senators could receive a report as early as Wednesday. The agency’s investigation is just the latest development in Kavanaugh’s explosive and turbulent confirmation process.
Most recently, that process has included a raw and emotional hearing on sexual assault this past Thursday as well as a last-minute flip-flop by Republican Jeff Flake on Friday.
It’s also featured looming uncertainty about how pivotal swing senators will ultimately decide to vote whenever the nomination reaches the floor and even developed its own lexicon: We’ve repeatedly heard about “boofing,” “beach week,” and Kavanaugh’s affinity for beer, not to mention other close readings of his more than 30-year-old yearbook and personal calendar.
As lawmakers wait for the FBI to conclude its investigation — which Republicans say will take no longer than a week — much of the ongoing scrutiny has focused on Kavanaugh’s fiery testimony during the Judiciary Committee hearing, when he not only defended himself but also levied a series of partisan attacks directed at Democrats.
Kavanaugh’s aggressive denial of Ford’s allegations has thrown other questions about his qualifications for the Supreme Court into sharp relief. As the heat on him has grown, so have the concerns about his temperament, his history of drinking, and his willingness to fudge the truth on small details.
Observers say his response has been telling in itself: Even if an FBI report presents inconclusive evidence about these allegations, the past week has offered a revealing glimpse of how Kavanaugh could behave if he ascends to the country’s highest court.
Kavanaugh was a portrait of entitlement during his hearing
Thursday’s Judiciary Committee hearing on sexual assault allegations was tough to watch on all counts. Ford offered a tearful and emotional recollection of the assault she says she experienced, while Kavanaugh, who was also tearful at times, went on the offensive and unleashed a barrage of attacks against Democrats.
“I am here today not because I want to be. I am terrified. I am here because I believe it is my civic duty to tell you what happened to me while Brett Kavanaugh and I were in high school,” Ford said. “I felt I couldn’t not do it.”
Kavanaugh, meanwhile, suggested Ford’s allegations were orchestrated as part of a Democratic smear campaign, taking many by surprise with the politically charged nature of his remarks even as he said he believed “something” may have happened to Ford.
“This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record,” Kavanaugh said. He even went so far as to call the allegations “revenge on behalf of the Clintons.”
Other aspects of their testimonies also offered marked contrasts. While Ford broadly answered lawmakers’ questions directly throughout her testimony, Kavanaugh frequently talked back and appeared to antagonize Democrats as they pressed him about his treatment of women and his relationship with alcohol.
“Let me finish,” he told senators repeatedly. In one particularly jarring exchange, when Sen. Amy Klobuchar (D-MN) asked Kavanaugh if he had ever had so much to drink that he blacked out, Kavanaugh shot back, “Have you?” (Kavanaugh later apologized to Klobuchar, who said her father was recovering from alcohol addiction.)
Sen. Jeff Flake flaked
Arizona Republican Jeff Flake appeared all set to vote in favor of Kavanaugh’s nomination. In fact, he released a statement to that very effect on Friday morning. Mere hours later, as the Judiciary Committee was gearing up to vote on Kavanaugh’s nomination, Flake threw all of that into disarray.
After some last-minute conversations with Democrats and members of his own party, Flake asked for a one-week delay on Kavanaugh’s floor vote so the FBI could conduct an investigation into the sexual misconduct allegations — something Democrats have been pushing for since Ford first came forward. He still voted to advance the nomination to the floor, however.
“I think it would be proper to delay the floor vote for up to but not more than one week in order to let the FBI do an investigation, limited in time and scope to the current allegations that are there, limited in time to no more than one week,” he said. Flake — who had been confronted by sexual assault survivors while he was in the elevator earlier that day — appeared dismayed by the partisan nature of the Kavanaugh confirmation process as well as the uncertainty surrounding the numerous allegations the nominee faces.
“It has been remarkable over the past week the number of people who saw Dr. Ford speak yesterday and were emboldened to come out and to say what had happened to them. I’ve heard from friends, close friends — had no idea,” he told reporters at the Capitol.
It’s a move that startled Republican leadership, who had hoped to jam Kavanaugh’s vote through as quickly as possible. Given Flake’s standing as one of three Republicans who could sink Kavanaugh’s nomination, Senate Majority Leader Mitch McConnell ultimately acquiesced and backed calls to the White House for a supplemental FBI review.
The same day, President Trump directed the FBI to open an investigation.
Concerns about Kavanaugh’s drinking are back in the spotlight
While Ford’s sexual assault allegations were the central focus of Thursday’s hearing, lawmakers’ inquiries around them also raised key concerns about Kavanaugh’s history with heavy drinking — something he has repeatedly sought to downplay in a way that’s prompted pushback from those who’ve known him in the past.
During his testimony, Kavanaugh largely denied that he drank excessively in his youth, despite multiple references to drinking in his high school yearbook and accounts from his friends and former classmates that he was, indeed, a heavy drinker. He made similar assertions during an interview alongside his wife on Fox News.
Chad Ludington, one of Kavanaugh’s college classmates, has said that he was “deeply troubled” by Kavanaugh’s “blatant mischaracterization” of his drinking at Yale. “For the fact is, at Yale, and I can speak to no other times, Brett was a frequent drinker and a heavy drinker,” Ludington said. “I know because, especially in our first two years of college, I often drank with him.”
He said that he heard Kavanaugh slur his words or saw him staggering from drinking on many occasions and that when Kavanaugh drank, he was often “belligerent and aggressive.”
Liz Swisher, another former Yale classmate, told CNN she observed Kavanaugh’s drinking. “There’s no problem with drinking beer in college,” she said. “The problem is lying about it.” Kavanaugh’s former roommate has said he drank a lot as well.
Mark Judge, Kavanaugh’s high school friend and now a conservative writer, has written about his own high school drinking and in one of his books referenced a “Bart O’Kavanaugh” throwing up and passing out in a car.
Others have backed up Kavanaugh’s account. The Times notes that Chris Dudley, who was involved in a bar fight with Kavanaugh in 1985, has spoken out in support of the judge and said he didn’t drink excessively.
Kavanaugh’s drinking habits in high school and college would usually be trivial — that’s a time in life when many people overdo it. But they’ve become an important part of the discussion surrounding Kavanaugh’s nomination to the Supreme Court. Both Ford and Deborah Ramirez, who has come forward with sexual misconduct claims about Kavanaugh when they were in college, alleges that Kavanaugh was drunk when the incident happened. Moreover, Kavanaugh has insisted he didn’t drink a lot and sought to cast himself as a sort of choirboy.
If he lied to the judiciary panel about his drinking, for example, that would be a big deal.
And that brings us to perjury
Democrats have long suggested that Kavanaugh was not entirely truthful during his recent confirmation hearing and previous ones in 2004 and 2006. They’ve said that he lied about his roles in Bush-era detainee policy, with controversial judicial appointees, and, most recently, about his drinking habits.
In the wake of the recent hearing on sexual assault allegations, this argument has taken on new life, with lawmakers specifically questioning how Kavanaugh characterized certain phrases he mentions in his yearbook — as well as his knowledge of different allegations that have been raised against him.
A series of text exchanges between college classmates of Kavanaugh’s suggests that he, or at least his legal team, was aware of allegations made against him by Ramirez, who has said that Kavanaugh exposed himself to her while they were both in college. Kavanaugh, meanwhile, has testified that the first he’d heard of these allegations was when they were published in the New Yorker.
Observers also note that Kavanaugh appears to have intentionally misconstrued components of his yearbook that could cast him in a negative light. 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. Similarly, he said that the phrase “Renate Alumnius,” a term some of his past Georgetown Prep classmates described as alluding to bragging about sexual conquests — was just about making a woman named Renate Schroeder Dolphin feel included.
While none of these statements may be independently disqualifying, the purported pattern of lying that Kavanaugh has exhibited could put his qualifications for the role of Supreme Court justice heavily into question. Former FBI director James Comey also suggested that this behavior might signal other concerns. “They ... know that little lies point to bigger lies,” he wrote in a New York Times op-ed on Monday, which described how FBI investigators would handle this review.
What the FBI has done so far
As Republicans have hammered over and over again, the FBI is not here to draw conclusions or make a definitive call on the credibility of the sexual misconduct allegations. The agency is simply a fact-finding body, they note.
And that’s exactly what investigators are working on now.
Prior to the start of the FBI investigation, the only information that was available about the sexual misconduct allegations that Kavanaugh faces came from first-person statements that Ford, Ramirez, Kavanaugh, and another woman named Julie Swetnick had made — along with haphazard character testimony offered by their respective supporters.
In the case of Ford’s allegation specifically, the three people she named as being at the party along with Kavanaugh when the alleged incident took place — Mark Judge, Patrick Smyth, and Leland Keyser — had all said they have no recollection of the event. The FBI has now interviewed all three of them and expanded the scope of its investigation into Ramirez’s allegations as well, though it has yet to question Ford.
The agency has also spoken with Tim Gaudette and Chris Garrett, two other high school classmates of Kavanaugh’s who were listed as attendees at a July 1st, 1982 social gathering demarcated on Kavanaugh’s calendar, according to The Washington Post. During a Senate Judiciary Committee meeting last Friday, Senator Sheldon Whitehouse argued that this particular gathering had a lot of similarities with the one Ford described as the scene of her alleged assault.
Ramirez spoke with the FBI over the weekend as well, her attorney John Clune has said. Clune adds that she provided law enforcement with more than 20 witnesses who could help corroborate her account, although it did not appear that the agency had reached out to any of them as of Tuesday evening.
Michael Avenatti on Wednesday announced that he was now representing a fourth possible witness, who has said that she observed Kavanaugh help spike drinks so women would be more likely to engage in sexual acts. Both the new witness and Swetnick, who is also being represented by Avenatti, have said they are open to talking with the FBI.
The White House on Monday instructed the FBI to interview anyone that it deems necessary to conduct a comprehensive investigation, according to the New York Times. That directive follows a slew of reports that suggested the White House was seeking to limit the range of the FBI’s review and prevent the agency from questioning certain witnesses, like Swetnick.
“I think the FBI should do what they have to do to get the answer,” Trump said during a press conference on Monday.
What happens next
As the FBI works on wrapping up its investigation, there are essentially three paths forward.
First, investigators could find something — anything — to corroborate the allegations brought by Ford or Ramirez. That would put the onus on the three skeptical Republican senators: Sens. Flake, Susan Collins (ME), and Lisa Murkowski (AK).
In this case, it’s possible McConnell would call their bluff and put the nomination on the floor, risking the very public embarrassment of having their Supreme Court nominee defeated with the world watching. But it’s also possible he would delay the vote.
Second, the FBI investigation could result in no new information. As we’ve already seen, many of the objections from Democrats and moderate Republicans have been about the process. With no new substantive information emerging, the skeptical Republican senators could say they are satisfied with the supplemental review. As such, they could likely take Kavanaugh’s side in this he-said, she-said setup and confirm him by next week.
Third, even with no new information, the skeptical moderate Republicans — particularly Collins and Murkowski — could feel the weight of the “believe women” advocacy that has reached a fever pitch. They could get cold feet and either vote down Kavanaugh or backchannel to McConnell to pull the nomination. (The conservative movement already has several alternative candidates waiting in the wings.)
Any of these would be a dramatic end to an already dramatic Supreme Court confirmation process. And any of these are possible in the coming days, as Kavanaugh, the least popular Supreme Court nominee in recent memory, awaits his fate.
McConnell has emphasized that he’s determined to hold a vote this week. If he has his way, a final vote on Kavanaugh’s confirmation could take place in the coming days.