With the Trump White House on Monday backing off its unprecedented effort to dictate an FBI investigation of its own Supreme Court nominee, the bureau now has just four days to complete its extended background check into the sexual assault allegations leveled against Brett Kavanaugh.
There’s not much chance that the bureau will be able to discover by Friday what happened at a small teenage party more than three decades ago. Even if agents find the house and the date, and witnesses who recall Kavanaugh and his friend Mark Judge and accuser Christine Blasey Ford together behind a closed door, that still wouldn’t answer what happened behind the door.
But there’s a real chance that the probe will show that Kavanaugh lied to Congress, and about matters material to his behavior as a teenager and his suitability for the court now. If the probe does not show that because agents avoided asking the questions that would uncover it, that would be another blow to the reputation of the FBI as it’s still reeling from then-director James Comey’s handling of the Hillary Clinton probe in 2016 and by President Donald Trump’s sustained attack since then on its leaders’ professionalism and motives.
You learn about a person’s character when that person is put in a stressful situation. Kavanaugh was put in one when Ford’s name was put out and her accusations evidently weaponized by Sen. Dianne Feinstein (D-CA) at the very end of his confirmation process. His reaction to that stressful situation exposed him.
Far from rising above a partisan attack, the nominee dropped any pretense of a judicious demeanor to proclaim himself the victim of “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, revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups.”
After that angry opening statement, denying the accusations he says have been falsely leveled against him, he evaded questions about his drinking, and lied, it seems clear to me, about his teenage sex talk. It’s that last one that will do him in, fittingly enough, if the FBI isn’t afraid to do its job after these last few years.
As his Georgetown Prep friends each go into a room with an FBI agent, they’ll be asked questions related to the sexual assault that Ford has alleged. If those agents in fact have the discretion the White House insists they do, they should also ask:
Kavanaugh said “FFFFF” was a reference to his friend Squee’s stuttering. Is that how you used the term and understood him to, or did it mean “find ’em, french ’em, finger ’em, fuck ’em, forget ’em”?
Kavanaugh said at his confirmation hearing that the term “boofing” in his yearbook referred to flatulence. Is that how you used the term and understood him to, or was it about anal sex?
And, the big one, given Ford’s claim that the future judge and his friend Mark Judge were together in the room, laughing as Kavanaugh assaulted her:
Kavanaugh testified that “The Devil’s Triangle” was a drinking game. Is that how you used the term and understood him to, or did it mean sex between two men and one woman?
Whatever the “Renate Alumni” know about the party that Ford swears that she can’t forget and Kavanaugh swears that he doesn’t remember, those are questions they can answer, and under penalty of federal law if they “knowingly and willfully… make any materially false, fictitious, or fraudulent statement or representation.”
So if agents are asking those questions—clearly material to Kavanaugh’s conduct and character as a teenager then and as a grown man now—there’s no political path for the handful of senators who could still possibly be swayed by the facts to support him. Just as the FBI aggressively prosecutes liars under 18 U.S.C. § 1001 to discourage all the other prospective liars, the Senate would pay a price if Republicans hold together and avert their eyes after the last baby fig leaf of plausibility has been stripped from Kavanaugh’s naked lies before them.
Judges routinely instruct juries that, if they believe that a witness has lied about one thing they may then conclude that the witness has lied about other things.
Does anyone doubt that Kavanaugh lied about the meaning of his yearbook entries? Not as a boy or young man, but as a 53-year-old federal judge testifying under oath before the Senate in hopes of being confirmed to a seat on our highest court?
The stories remain hers and his, and can’t be reconciled. If the FBI field agents doing the questioning withstand whatever political pressures and ask these obvious questions, senators will have to pick between the person whose account has so far held up and one who has plainly lied. As Sen. Jeff Flake (R-AZ), who before passing Kavanaugh out of committee on a party-line vote demanded an FBI investigation before the full Senate decides on his nomination, said of the nominee Monday night, minimizing his drinking would be one thing, but “if he lied on particular things that [are] demonstrable, then that is disqualifying.”
And it would be no small poetic justice to see Kenneth Starr’s dirty whisperer hoisted on the petard of his own childish sex jokes.
“Unfortunately,” Kavanaugh wrote as he and Starr hunted Clinton, “the nature of the President’s denials requires that the contrary evidence be set forth in graphic, even disconcerting, detail.”
Now it is the nature of the would-be justice’s denials that require the FBI to sort through the meaning of “The Devil’s Triangle” in graphic, even disconcerting detail.