Five things to know about the FBI's Kavanaugh investigation

The FBI is said to be wrapping up its investigation into the sexual assault allegations against Supreme Court nominee Brett Kavanaugh.

Kavanaugh’s confirmation process was derailed last month when Palo Alto University professor Christine Blasey Ford went public with her accusation that a drunken Kavanaugh pinned her to a bed and groped her at a high school party in the early 1980s. Since then, two other women have come forward with sexual misconduct allegations against the nominee.

GOP leaders agreed to an additional investigation into the accusations after Sen. Jeff FlakeJeffrey (Jeff) Lane FlakeLindsey Graham basks in the impeachment spotlight Kelly, McSally virtually tied in Arizona Senate race: poll The Hill's 12:30 Report — Presented by Nareit — White House cheers Republicans for storming impeachment hearing MORE (R-Ariz.) said he would not vote to confirm Kavanaugh, a D.C. Circuit Court judge, without it.


Trump last week called Ford a “credible witness” and authorized the FBI to investigate the allegations. But he has since grown increasingly frustrated with the situation, mocking Ford’s testimony at a Mississippi rally on Tuesday night.

Here's a look at five things you need to know about the investigation.

The witnesses

In six days, the FBI has interviewed a slew of witnesses in connection with its investigation into Ford’s allegations, including individuals she says were at the party where Kavanaugh allegedly assaulted her.

Those individuals include Kavanaugh’s high school friend and classmate Mark Judge, who Ford says was in the room during the alleged assault, and Patrick J. Smyth, another former classmate of Kavanaugh's. Agents have also questioned Ford’s friend, Leland Keyser.

The inquiry is not limited to Ford's allegations. Agents have interviewed Deborah Ramirez, the second of three women to come forward with sexual misconduct allegations against Kavanaugh.

As of Wednesday afternoon, the FBI had yet to interview Ford, nor had the bureau questioned Kavanaugh.


Ford’s attorneys sent a scathing letter to FBI leaders on Tuesday, warning that it would be “inconceivable” for the bureau to complete its investigation without interviewing Ford, Kavanaugh or other witnesses their client had identified.

Steve Gomez, a former FBI special agent in charge in Los Angeles, said it would not be unusual for the FBI to pass on interviewing Ford or Kavanaugh if no new information comes to light during the other interviews.

“If there’s nothing more that was surfaced from those interviews, it’s almost like there is no reason to interview them because of their extensive testimony,” Gomez said. “Still, I would want to interview Dr. Ford and Judge Kavanaugh about Ford’s allegations.”

The FBI has also not questioned Julie Swetnick, the third Kavanaugh accuser, who is represented by Michael Avenatti, the attorney representing adult-film actress Stormy Daniels in her lawsuits against President TrumpDonald John TrumpFive takeaways from the Democratic debate As Buttigieg rises, Biden is still the target Leading Democrats largely pull punches at debate MORE and Michael Cohen. The president said earlier this week that he had no problem with the bureau interviewing Swetnick, though he and other Republicans have questioned her credibility.

Jack Owens, who worked as an FBI field agent for 30 years in Alabama, said the FBI can’t force anyone to participate in the investigation.

“This is not a criminal matter,” he said. “They have to volunteer to be questioned by an agent.”

The FBI said it did not have a comment to provide when asked about the scope and status of the investigation.

The report

The bureau is expected to send a report laying out the findings to the Senate Judiciary Committee as soon as Wednesday.

Generally, reports on background investigations consist of an executive summary and a series of documents, called 302s, that record investigative activities such as crime database checks, court records and interviews.

Under normal circumstances, the findings of FBI background investigations are closely held and not publicly released, though the intense public scrutiny surrounding the Kavanaugh allegations could mean things play out differently this time around.

Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellOvernight Health Care: Fireworks on health care expected at Dem debate | Trump FDA pick dodges on vaping ban | Trump to host meeting on youth vaping Friday | AMA calls for immediate vaping ban GOP senator blocks vote on House-passed Violence Against Women Act On The Money: Senate scraps plan to force second shutdown vote | Trump tax breaks for low-income neighborhoods draw scrutiny | McConnell rips House Dems for holding up trade deal MORE (R-Ky.) said Tuesday that only senators will get to see the full report of the investigation. Meanwhile, others, including Sen. John CornynJohn CornynTensions rise in Senate's legislative 'graveyard' Congress feels heat to act on youth vaping Senate passes legislation supporting Hong Kong protesters MORE (Texas), the No. 2 Senate Republican, have said that at least some information should be made public. Some Democrats are calling for releasing the full report.

Ultimately, the Judiciary Committee or the White House could decide to make a public disclosure — either the report itself or, more likely, a summary of the findings — about the investigation.

“From a political standpoint, it wouldn’t surprise me that the White House orders [the summary] to be public,” said Mark Zaid, a Washington-based lawyer and expert in background investigations.


Still, even if the administration and Congress decide against releasing any information publicly, there is the possibility it could be leaked.

“I’m sure people will find a way to provide some amount of information publicly,” said Jill Dash, vice president of strategic engagement for the American Constitution Society, a liberal legal group that has been critical of Kavanaugh’s nomination. “But if you’re talking about releasing a report that reveals the sources, methods and quotes from people consulted — that, I don’t think, is appropriate.”

But Dash said there’s nothing to stop a senator from speaking directly to the public about the report, and she thinks they will.

The legal ramifications

If the FBI turns up any evidence supporting the sexual assault accusations, it could very well derail Kavanaugh’s nomination.

But Owens, who conducted dozens of background checks of federal judicial nominees during his time at the FBI, said the goal of the supplemental investigation is not to level charges against Kavanaugh.

“It’s simply going to be an extension of the original background check, a supplementary investigation,” he said.


He said the FBI is unlikely to send any criminal evidence to local authorities for prosecution.

Others also say that any evidence the bureau turns up is unlikely to be enough for local prosecutors to bring charges related to decades-old allegations.

“I don’t think the evidence would be strong enough, going back that far, that would be strong enough to lead to a conviction,” said Gomez, a former FBI special agent who now runs the security consulting firm B2G Global Strategies. “That would be the standard that prosecutors would have to consider charges.”

Montgomery County Police Chief J. Thomas Manger and State’s Attorney John McCarthy in Maryland said they are prepared to investigate sexual assault allegations against Kavanaugh if a victim comes forward and files a criminal report, The Associated Press reported Sunday.

Historical precedence

Many have compared the Kavanaugh controversy to Justice Clarence Thomas, who also faced serious allegations during his confirmation process in 1991. Anita Hill alleged that Thomas sexually harassed her when she worked for him at the Equal Employment Opportunity Commission, a federal agency.

Ian Samuel, an associate professor of law at Indiana University Bloomington's Maurer School of Law, said there are a number of similarities given both were dramatic, last-minute revelations that prompted further investigation.


Samuel noted that the chairmen of the Judiciary Committee in both cases — Sen. Chuck GrassleyCharles (Chuck) Ernest GrassleyOvernight Health Care: GOP senator says drug price action unlikely this year | House panel weighs ban on flavored e-cigs | New York sues Juul Top GOP senator: Drug pricing action unlikely before end of year Key Republicans say Biden can break Washington gridlock MORE (R-Iowa) now and Sen. Joe BidenJoe BidenFive takeaways from the Democratic debate As Buttigieg rises, Biden is still the target Leading Democrats largely pull punches at debate MORE (D-Del.) then — refused to call additional witnesses to testify before the panel. But he said the most important difference is that the Senate and the White House weren’t controlled by the same party during the Hill scandal.

“It has injected an element of true partisan warfare into this that wasn’t really present with the Thomas/Anita Hill controversy,” Samuel said.

But the two cases are also markedly different.

“Although both sets of accusations are extremely serious, one is an allegation of actual physical violence,” Samuel said, referring to Ford’s claims.

Before Thomas, there was Abe Fortas in 1968. Samuel said then-President Lyndon B. Johnson tried to elevate the associate justice to chief justice, but Fortas couldn’t get enough votes to end debate on his nomination.

The former White House lawyer had been highly criticized for routinely meeting with the president and discussing matters of political significance while serving on the Supreme Court.

Fortas ultimately resigned in 1969 after it was revealed that he had accepted a $20,000 fee from a foundation that was controlled by a friend and former client who was under federal investigation for violating securities laws, according to his 1982 obituary in The New York Times.

Next steps

Senators are barreling toward a procedural vote on Kavanaugh’s nomination by the end of this week.

The FBI’s report will lay out the findings but will not make any kind of recommendation, leaving it to senators to make their own judgment as to what it says about Kavanaugh’s innocence or guilt, and how that in turn impacts their vote.

“We may be dealing here with a standoff where there would be no resolution per se,” Owens said. “The FBI never comments on the results of these investigations. It’s not our place. It’s not our mandate to make any kind of comment or recommendation.”  

Dash, however, said Republicans are likely to claim victory regardless.

“Republican senators even with the limits on the FBI are going to claim that unless the FBI manages to verify all of Ford’s allegations in the short amount of time they’ve been given that that completely exonerates Brett Kavanaugh and that should not be the test,” she said.

The focus is squarely on three Republican senators who are seen as key swing votes on Kavanaugh’s confirmation — Sens. Flake, Lisa MurkowskiLisa Ann MurkowskiKey Republicans say Biden can break Washington gridlock Impeachment hearings don't move needle with Senate GOP Hillicon Valley: Federal inquiry opened into Google health data deal | Facebook reports millions of post takedowns | Microsoft shakes up privacy debate | Disney plus tops 10M sign-ups in first day MORE (Alaska) and Susan CollinsSusan Margaret CollinsTensions rise in Senate's legislative 'graveyard' 2020 Republicans accuse Schumer of snubbing legislation Key Republicans say Biden can break Washington gridlock MORE (Maine).

Democrats who have been critical of Kavanaugh’s nomination are unlikely to be swayed by the report’s findings, but its release is expected to continue to inflame tensions along the political aisle. McConnell on Wednesday denied a request from Minority Leader Charles Schumer (D-N.Y.) for the FBI to brief the full Senate on its investigation.