Preliminary Note: See my September 28 article “Brett Kavanaugh: A Black Mark on the Supreme Court?” and my article today, “Summon Mark Judge to Testify in Kavanaugh Hearings.”
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On the eve of the Senate Judiciary Committee’s vote on whether to send President Trump’s nomination of Brett Kavanaugh to the full Senate for a vote on confirmation, Republican senators agreed to do so on the condition that the FBI conduct a further background investigation of Kavanaugh.
Upon learning of the call for further investigation, Trump, not surprisingly, went ballistic. He wanted an unconditional vote from the committee and an immediate vote of confirmation from the full Senate, with no delay for further background investigation of Kavanaugh.
Nonetheless, Trump announced that that the FBI would have “free rein” in the “investigation,” which could not take longer than one week. He stated, “They’re going to do whatever they have to do. Whatever it is they do, they’ll be doing — things that we never even thought of. And hopefully at the conclusion everything will be fine.”
As things are turning out, however, it is becoming increasing clear that Trump was speaking falsely. In fact, the news media is reporting that Trump has placed extremely tight limitations on what the FBI will be permitted to investigate. In fact, it appears that he has limited the FBI to conducting interviews of four people: Christine Blasey Ford, who has accused Kavanaugh of sexually assaulting her, Mark Judge, who Ford alleges was a co-participant in the assault, Leland Keyser, one of the people who Ford states was at the party where the assault allegedly took place, and Deborah Ramirez, who alleges that Kavanaugh publicly exposed himself to her in college.
What’s wrong with Trump’s severe limitation on the FBI’s further background investigation of Brett Kavanaugh? It doesn’t permit the FBI to investigate the possibility that Kavanaugh has committed a brand new offense — that is, in addition to the sexual-assault offense that Ford has accused him of. What is that brand new offense? It is the offense of perjury, which is a federal felony offense.
Kavanaugh supporters emphasize that he has been the subject of several FBI background checks already. They miss two critically important points:
One, those background checks were conducted before the FBI had any information regarding the sex assault that Ford has accused him of. That information came to light after those several FBI background checks. The FBI has not conducted a full background investigation regarding that possible offense.
Two, those background checks were conducted before Kavanaugh’s testimony last Thursday. Why is that important? Because there is the possibility that Kavanaugh committed perjury during his testimony at that hearing. The FBI has not conducted a full background investigation regarding that possible new offense.
With the approval of an investigation by the Senate, it appeared that that failure to investigate these two possible offenses was going to be rectified. Now, it is has become painfully obvious that Trump is not about to let that happen.
For some laymen (i.e., non-lawyers) perjury might seem like no big deal and certainly not enough to keep a lawyer or a judge from becoming a Supreme Court justice. As I explain in my article, “Summon Mark Judge to Testify in Kavanaugh Hearing,” to every member of the legal profession perjury is an extremely grave offense, especially for a lawyer or a judge, and a clear justification for disqualifying any lawyer or judge who has committed perjury from serving on the U.S. Supreme Court.
In fact, as I state in my article, in my opinion that is precisely the reason why the American Bar Association, which has 400,000 members, and the dean of the Yale Law School, where Kavanaugh got his law degree, immediately withdrew their support for his nomination after Ford and Kavanaugh testified until an additional background investigation was conducted. Every lawyer in the land who watched the proceedings would have had to acknowledge the possibility that Kavanaugh had committed perjury and that further investigation into that possibility was necessary. As I also state in my article, for the legal profession, there would be few things worse than confirming a lawyer or judge who has committed perjury to be a justice on the highest court in the land.
There are several points of Kavanaugh’s testimony that are extremely problematic, one of which is his statement (under oath) that people who Ford stated were at the party where the assault allegedly took place have refuted Ford’s allegation. That is a downright false statement. Those people have never denied that they were at the party. They stated that they don’t recall being at the party, one way or another. For a layman, that might seem like just quibbling over words. For lawyers and judges, the difference between the two statements is night and day.
Other problematic parts of his testimony are found in the following articles:
At Times, Kavanaugh’s Defense Misleads or Veers Off Point (New York Times)
Brett Kavanaugh Wrongly Claimed He Could Drink Legally in Maryland in High School (CBS)
Kavanaugh’s Evasive Testimony Probably Wouldn’t Have Been Allowed in His Own Courtroom (Washington Post)
There is another problem with Trump’s limitation of the FBI’s background investigation. Ford testified that she encountered Mark Judge shortly after the alleged assault while he was employed at Safeway. If the FBI were able to secure those employment records, that would tend to tie down the approximate date of the assault, which Ford is having trouble recollecting. It might well also link up with a July 1 entry that Kavanaugh has in his calendar indicating that he was going to a friend’s house to drink beer with some of the people who Ford says were at the party. Thus, those employment records could serve as valuable evidence that would tend to corroborate Ford’s allegations. Yet, under the severe limitations that Ford has placed on the FBI, the FBI is prohibited from approaching Safeway and asking to see their employment records.
Is the possibility that Kavanaugh has committed perjury worth investigating? Is perjury something that should disqualify a lawyer or a judge from serving on the U.S. Supreme Court?
My hunch is that there might well be a diversity of opinion on those questions from non-lawyers. My hunch also is that if lawyers, judges, law professors, and law students were asked that question, at least 99 percent of them would answer that the possibility that any Supreme Court nominee has committed perjury should be fully investigated and that if the investigation revealed that he had, in fact, committed perjury that should disqualify him from serving on the U.S. Supreme Court.
Trump is now heralding his sham “investigation” because it will be placing a stamp of approval on his nominee. With the exception of his falsely stating that the FBI would have “free rein” to conduct its “investigation,” it’s difficult to get more pathetic than that.
