By David B. Rivkin and Lee A. Casey
Sept. 29, 2019, in the Wall Street Journal
The effort to sink Justice Brett Kavanaugh’s confirmation cries out for investigation. The Senate Judiciary Committee has already made a criminal referral to the Justice Department regarding alleged material misstatements by lawyer Michael Avenatti and his client Julie Swetnick. And a new book by two New York Times reporters contains a potentially explosive revelation.
In “The Education of Brett Kavanaugh,” Robin Pogrebin and Kate Kelly report that Leland Keyser —who was unable to corroborate high-school friend Christine Blasey Ford’s allegation of youthful sexual misconduct—says she felt pressured by a group of common acquaintances to vouch for it anyway. The book quotes an unnamed male member of the group suggesting in a text message: “Perhaps it makes sense to let everyone in the public know what her condition is”—a remark the reporters describe as reading “like a veiled reference” to Ms. Keyser’s “addictive tendencies.” (The authors quote her as saying she told investigators “my whole history of using.”)
A concerted effort to mislead the Federal Bureau of Investigation and the Senate, especially if it involved threats to potential witnesses, could violate several federal criminal statutes, including 18 U.S.C. 1001 (lying to federal officials), 18 U.S.C. 1505 (obstruction of official proceedings) and 18 U.S.C. 1622 (subornation of perjury). Investigating and, if the evidence is sufficient, prosecuting such offenses would deter similar misconduct in the future.
It’s bad for the country when nominees are subjected to what Bill Clinton calls “the politics of personal destruction.” It intensifies political polarization and bitterness, traduces due process, dissuades good people from government service, and injures the reputation of the judiciary and other institutions.
The Senate and FBI could also consider changing the background-check process for nominees. Justice Kavanaugh’s opponents seem to have expected a full-fledged criminal-style inquiry into Ms. Ford’s allegations, although Senate Democrats had sat on them for months. But that’s not how background investigations work. They’re carried out by a special unit whose job is to verify information the nominee has provided and gather additional information that may reflect on his character and reputation. This process does not involve the same sort of searching questions that are characteristic of a criminal investigation. Nor do FBI background investigators routinely assess individual witness credibility. They reach no conclusions but collect information and then forward it to the White House and Senate. It is then up to the elected officials to decide who and what to believe. It is a political, not a criminal, process.
This is a matter of practice and tradition, not law. The FBI could be asked to conduct background investigations in a manner more comparable to its criminal and intelligence work, where agents will assess witness credibility and use those assessments to guide the focus and course of the inquiry. It should be especially vigilant to the possibilities of collusion and witness tampering, which are uniquely troubling in high profile confirmation battles.
Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush.