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 FlakeCruz to get Nord Stream 2 vote as part of deal on Biden nominees Democrats threaten to play hardball over Cruz's blockade Rubio vows to slow-walk Biden's China, Spain ambassador nominees MORE (R-Ariz.) said he would not vote to confirm Kavanaugh, a D.C. Circuit Court judge, without it.

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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.

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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 TrumpFormer New York Assembly Speaker Sheldon Silver dead at 77 Biden, Democrats losing ground with independent and suburban voters: poll Bipartisan Senate group discusses changes to election law 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 McConnellSchumer requests Senate briefing on Ukraine amid Russia tensions Bipartisan Senate group discusses changes to election law There is a bipartisan path forward on election and voter protections MORE (R-Ky.) said Tuesday that only senators will get to see the full report of the investigation. Meanwhile, others, including Sen. John CornynJohn CornynSenators huddle on Russia sanctions as tensions escalate Momentum builds for new COVID-19 relief for businesses Senate panel advances bill blocking tech giants from favoring own products 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.

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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.

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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.

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Samuel noted that the chairmen of the Judiciary Committee in both cases — Sen. Chuck GrassleyChuck GrassleySmall ranchers say Biden letting them get squeezed These Senate seats are up for election in 2022 Hillicon Valley — Senate panel advances major antitrust bill MORE (R-Iowa) now and Sen. Joe BidenJoe BidenFox News reporter says Biden called him after 'son of a b----' remark Peloton responds after another TV character has a heart attack on one of its bikes Defense & National Security — Pentagon puts 8,500 troops on high alert 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 MurkowskiBipartisan Senate group discusses changes to election law There is a bipartisan path forward on election and voter protections Trump sold off the Arctic Refuge — Congress must end this risky boondoggle MORE (Alaska) and Susan CollinsSusan Margaret CollinsBipartisan Senate group discusses changes to election law The Hill's Morning Report - US warns Kremlin, weighs more troops to Europe Democrats face scaled-back agenda after setbacks 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.