The Confusion Surrounding the FBI's Renewed Investigation of Brett Kavanaugh
By Jane Mayer and Ronan Farrow, The New Yorker
01 October 18
As the F.B.I. began its investigation this weekend into allegations of
sexual misconduct by Brett Kavanaugh, President Trumps Supreme Court
nominee, several people who hope to contribute information about him to the
F.B.I. said that they were unable to make contact with agents. President
Trump has promised to give the F.B.I. free rein in its probe, but the
Times reported on Saturday that the White House had asked the F.B.I. to
question only four witnesses. In the course of the next day, confusion
spread about whom the F.B.I. would be interviewing, and Senate Democrats
demanded that the White House provide the Senate Judiciary Committee with a
copy of the written directive that it had sent to the F.B.I. regarding the
investigation.
With a one-week deadline looming over the investigation, some who say they
have information relevant to the F.B.I.s probe are suspicious that the
investigation will amount to what one of Kavanaughs former Yale classmates
called a whitewash. Roberta Kaplan, an attorney representing one potential
witness, Elizabeth Rasor, a former girlfriend of Kavanaughs high-school
friend Mark Judge, said her client has repeatedly made clear to the Senate
Judiciary Committee and to the F.B.I. that she would like the opportunity to
speak to them. But, Kaplan said, Weve received no substantive response.
Christine Blasey Ford has accused Judge of being an accessory to Kavanaughs
alleged sexual assault on her, in 1982, when they were all in high school.
Kavanaugh has vehemently denied any role in the assault, and Judge, through
his attorney, Barbara Van Gelder, also has denied any recollection of it.
Kaplan said that early this past week she began reaching out to the F.B.I.
and to the Senate Judiciary Committee on Rasors behalf. She feels a sense
of civic duty to tell what she knows, Kaplan said. But the only response
weve gotten are e-mails saying that our e-mails have been received. At
one point, she said, an F.B.I. official suggested she try calling an
800-number telephone tip line.
Debra Katz, the lead attorney for Ford, said that her client, too, had been
willing to coöperate with the F.B.I.s investigation, but as of Sunday the
F.B.I. had not contacted her, despite Fords central role in the
controversy. Weve tried repeatedly to speak with the F.B.I, but heard
nothing back, Katz said.
F.B.I. officials referred questions to the White House. The White House
spokesman Raj Shah defended the process, and released a statement that
placed responsibility for any limitations on the Senate. The scope and
duration has been set by the Senate. The White House is letting the FBI
agents do what they are trained to do, his statement said. Shah accused
Senate Democrats of merely wanting to further delay and politicize the
investigation rather than being genuinely concerned about its integrity.
Rasor dated Judge on and off for two to three years while they were students
at Catholic University, and she is now a public-school teacher in New York.
After hearing Judges denials, Rasor came forward, offering to give a sworn
statement to the F.B.I. challenging Judges credibility. According to
Kaplan, the F.B.I. has so far shown no interest in hearing what Rasor has to
say, and efforts to contact the Bureau have gone nowhere.
A Yale classmate attempting to corroborate Deborah Ramirezs account that,
during her freshman year at Yale, Kavanaugh thrust his penis in her face at
a drunken party, said that he, too, has struggled unsuccessfully to reach
the F.B.I. The classmate, who asked to remain anonymous, recalled hearing
about Ramirezs allegation either the night it happened or during the
following two days. The classmate said that he was one-hundred-per-cent
certain that he had heard an account that was practically identical to
Ramirezs, thirty-five years ago, but the two had never spoken about it. He
had hoped to convey this to the F.B.I., but, when he reached out to a Bureau
official in Washington, D.C., he was told to contact the F.B.I. field office
nearest his home. When he tried that, he was referred to a recording. After
several attempts to reach a live person at the field office, he finally
reached an official who he said had no idea what he was talking about. At
this point, he went back to the official at the F.B.I.s D.C. headquarters,
who then referred him, too, to an 800-number tip line. (He eventually left a
tip through an online portal.)
I thought it was going to be an investigation, the Yale classmate said,
but instead it seems its just an alibi for Republicans to vote for
Kavanaugh. He said that he had been in touch with other classmates who also
wanted to provide information corroborating Ramirezs account, but that they
had not done so.
***
On Sunday, a second Yale classmate, Charles Ludington, released a statement
accusing Kavanaugh of blatantly mischaracterizing his college drinking
during his testimony before the Senate Judiciary Committee last week.
Ludington said that Kavanaugh often grew belligerent and aggressive when
drunk, and that he had planned to share his information with the F.B.I. 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, Ludington wrote. I felt it was my
civic duty to tell of my experience while drinking with Brett, and I offer
this statement to the press. I have no desire to speak further publicly, and
nothing more to say to the press at this time. I will however, take my
information to the F.B.I. The Times reported that Ludington, a professor at
North Carolina State University, said that the F.B.I.s D.C. field office
had told him to go to the Bureaus Raleigh, North Carolina, field office on
Monday if he wished to speak with agents. Ludington said that he intended to
do so and tell the full details of my story. A lawyer representing
Kavanaugh did not respond to a request for comment about Ludingtons
statement.
According to the Times, the four witnesses approved by the White House for
interviews by the F.B.I. are Judge; P. J. Smyth, another high-school friend
of Kavanaughs; Leland Keyser, a high-school friend of Fords; and Ramirez.
(Lawyers for Smyth and Keyser have issued statements saying that their
clients will coöoperate with the investigation, though Keysers told CBS
that she will tell the F.B.I. that she does not know Kavanaugh or remember
the party where Fords alleged assault took place. Keyser has also stressed,
however, that she believes Ford and does not refute her testimony.)
Leah Litman, an assistant professor of law at the University of California,
Irvine, said the severe restrictions on the scope of the investigation made
it a joke. She asked, What kind of an investigation into an assault that
happened under the influence of alcohol doesnt include investigating the
accuseds use of alcohol? She said, Usually, the F.B.I. investigators
arent told who to call and who not to. She said that Rasor should be
interviewed, given her past relationship with Judge. If Mark Judge is on
the approved list of witnesses, and they are interviewing him, there is no
reason not to interview Rasor, who has testimony that is very relevant to
his credibility, and the testimony that he would offer, she said.
As The New Yorker previously reported, Rasor said that she felt morally
obligated to challenge Judges description of his and Kavanaughs
high-school sex lives as innocent. She said that, under normal
circumstances, I wouldnt reveal information that was told in confidence,
but, she said, I cant stand by and watch him lie. She recounted that
Judge had told her ashamedly of an incident that involved him and other boys
taking turns having sex with the same drunk woman. Rasor said that Judge
seemed to regard it as fully consensual. She said that Judge did not name
others involved in the incident, and that she had no knowledge about whether
Kavanaugh participated. (Van Gelder, Judges attorney, said that he
categorically denied the account related by Rasor, and Kavanaugh, during
last weeks hearings, scoffed at the notion that he had ever participated in
or been present during any incident of gang sex.)
While Rasors allegations appeared to be unexamined by the F.B.I., CNN
reported that Ramirez had spoken with F.B.I. agents on Sunday and provided
them with the names of potential witnesses. It was not clear whether the
F.B.I. would be interviewing the witnesses. Over the weekend, Senate
Republicans and White House officials argued that the F.B.I. is simply
following the usual protocol for background investigations, which are far
less rigorous than criminal investigations. In an interview with CNN, the
Presidential counsellor Kellyanne Conway said, It will be limited in scope;
its meant to last one week. . . . Its not meant to be a fishing
investigation. She denied reports that the White House counsel, Don McGahn,
who has shepherded Kavanaughs nomination, was micromanaging the process,
saying, I dont think Don McGahn would do that, but Ive not talked to him
about it.
However, Democratic officials with experience overseeing F.B.I. background
investigations disputed that there was anything procedurally routine thus
far in the F.B.I.s renewed investigation into Kavanaugh. Robert Bauer, who
served as the White House counsel to President Obama, said that he had
overseen numerous F.B.I. background investigations and never seen one so
circumscribed. The F.B.I. should have the latitude to determine what is
necessary in a credible, professional inquiry, he said. The issue on the
table is, Did he or didnt he engage in the conduct that Dr. Ford alleged?
To reach the answer, he said, The F.B.I. needs to utilize its expertise to
investigate. But instead the White House has dictated a restricted
investigative plan. So its contaminated at the core.
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