I thought the saga of dragging Brett Kavanaugh through the mud was about over. Yesterday morning, Senator Flake had said he was going to vote yes for confirmation. Then came his confrontation in an elevator, shown on national media, with a woman berating him for his position. A little time later his position became he would vote to move the nomination out of committee but would only vote for Kavanaugh if the FBI did a background investigation on current credible charges against Kavanaugh. Apparently he and Senator Murkowski went to Mitch McConnell and pointed out he wouldn't get his 50 votes without an FBI investigation.
Almost immediately, it was announced that President Trump was directing the FBI to do a limited, supplemental background investigation (BI) into current credible allegations against Brett Kavanaugh. He limited the investigation to 7 days. So we have another week for democrats to come up with another valid reason for not voting on Brett Kavanaugh.
What follows is purely my own thoughts and conjecture about what has happened and what will happen.
First, I want to address Jeff Flake and his potential motivation. In the past, he's been rabidly anti-Trump. There is no doubt he wants to stick it to the President. That would mean a no vote on Kavanaugh. On the other hand, people say good things about him personally, so I assume he does not want to hurt somebody he doesn't have a grudge against, such as Brett Kavanaugh. So I figure he's torn. I don't believe for a minute that he trusts Christine Ford's identification of Kavanaugh as her attacker. Before the viral elevator video, he didn't have an excuse to vote for delay. Then he did, and he took it. He's leaving the Senate, so his electorate and voters don't matter. Only his own conscience.
Senators Murkowski (R), Collins (R), Manchen (D), Donnelly (D), Heitkamp (D) and McCaskill (D) are in different situations. Let's take the democrats first.
These folks are in states that went big time for Trump and they are up for re-election in a few weeks. They have, by voting history, a big preference for going along with the democratic majority. So presumably, they want to vote no. I suspect they don't want to hurt Brett Kavanaugh and his family either, but they don't want him on the Supreme Court. On the other hand, they have to be evaluating the potential effect of this confirmation on their election chances. I suspect, they will only vote yes if they assess their electorate as likelier than not voting them out if they vote no. They are happy for any delay in making this decision.
Senator Murkowski and Senator Collins are obviously female and registered republicans (for those who don't follow politics) and tend to jump the fence and vote for liberal social causes. You never know how they are going to vote. Neither has a really solid republican base in their states. And both tend to vote for feminist issues. Somehow, Brett Kavanaugh is considered anti-abortion and women, though his record is contrary to that media position. Their party allegiance is less than that of their counterpart democrats, that I just mentioned. But I believe they want to vote yes for Kavanaugh. On the other hand, they worry about their reputation with their women voters. A delay gives them more time to assess their options, and it potentially could provide a stronger case for Kavanaugh and a better argument for voting yes.
So, if no additional negative information were to come out in the next 7 days, Kavanaugh would likely get confirmed. If there is any additional credible allegations or information, either from the FBI or via the media, his chances get worse and worse.
For example, yesterday I said their was no statute of limitations in Maryland for attempted rape. Today, I learned in 1982 there was. Attempted rape was a misdemeanor with a 1 year statute of limitation. Brett Kavanaugh couldn't be charged, or at least tried, for any assault in 1982. But the Montgomery County Chief of Police and State Prosecutor said they would be willing to investigate if anyone filed criminal charges. They are democrats and wouldn't be restricted to any 7-day limit. Since there would be no trial and no discovery, their investigation wouldn't have to reveal any information suggesting the innocence of Brett Kavanaugh. I suspect the anti-Trump lawyers for Christine Ford will try to get her to file charges.
Then there is the FBI background investigation. I've undergone background investigations about every five years for my previous security clearances. Since I've had nothing bad on my record, they have been routine. You fill out a long, very long questionnaire about your history and potentially bad events. You get interviewed by an investigator. And they ask questions of your neighbors, friends and others identified in your history.
I can only presume what they would do with a criminal allegation where a charge was never filed. I would presume they would interview the accuser and anyone he/she identified as being involved or having knowledge of the alleged crime. I would further assume they would investigate, to the extent resources allowed, the motivation and credibility of the accuser and witnesses. In most background investigations, the interviews are conducted by agents in the respective localities involved and I believe their reports are aggregated and assessed as a package. You don't have one detective like you do on TV that makes it their life ending motivation to bring a criminal to justice.
On the other hand, I suspect the FBI will not make this a typical background investigation. They will assign more resources than normal and the process and reports will get more scrutiny. I suspect they will still not have subpoena power to force anyone to talk or produce non-public records. However, anyone that does communicate with the FBI or their agents will be under penalty of perjury, just as they were with the Judiciary Committee's investigators.
But if Christine Ford and/or her lawyers don't want to provide information, such as polygraph records or therapy notes, the FBI won't have that information. If Christine Ford and/or her lawyers have any concern about an in-depth forensic discussion, they will not make her available for further interviews. If she does an interview, I would expect her lawyers to be present and for her to have further memory lapses about anything having to do with polygraphs, therapy, or assault details that could be disproved.
But I could be wrong on that. During Friday's hearing, it appeared Christine Ford's team had limited the committee's access to information, attempted to mislead the committee, and crafted the event to avoid any serious questioning. I don't think the FBI will get access to any additional information from Ford or her attorneys. They may be able to talk to people she's discussed the event with (from 2012 to today), but that is hearsay and those folks would have their own credibility issues. My guess is the FBI won't try to talk to anyone but the therapists and the polygrapher, and I think both will decline based on confidentiality claims.
The FBI will likely talk to the other people Ms. Ford identified as being at the party. They've already made on-the-record statements on penalty of perjury, so it is unlikely they can do more than elaborate. Ms. Ford's female friend could say how she never knew of Ms. Ford lying about anything, something like that.
One thing I do not know is how much investigator personal opinion on the credibility of an interviewee is allowed by the FBI. My guess, personal opinion is allowed on the 302's. I'm sure they prefer to have evidence of lying or dissembling when the agent questions credibility, but my guess is they allow opinion and expect the people evaluating the 302's to assign their own level of trust in the agent's opinion. With recent evidence of FBI prejudice against Trump and for Clinton, this throws a lot of uncertainty into what those 302's will say.
By the way, Privacy Laws are going to theoretically prevent any release of information in the background investigation to the public. I'm assuming the whole package will be transmitted to the Judiciary Committee, but like with Ms. Ford's letter in the previous package, they may black out key information. And like with Ms. Ford's letter that requested confidentiality, I'm guessing any negative findings will be leaked to the press, with everyone declaring they didn't do it.
My best guess is that the FBI will report an inability to access additional information on Ms. Ford's accusation and cannot therefore assess her credibility with any confidence. They may highlight the relative friendships of the witnesses and highlight any probable memory losses due to medical issues over the years. One would expect, with unbiased agents, and the previous difficulties encountered by committee investigators, that the FBI supplemental BI will be unable to confirm that a crime was committed and cannot add any significant additional information on the allegation.
But I don't think that is the only event that will appear in the media over the next week. Montgomery County in Maryland may open an investigation if Ms. Ford's lawyers can convince her to file charges. The media will be doing their best to find additional people (with corroborating witnesses) that will make additional allegations against Brett Kavanaugh. Do you think that the anti-Trump resistance cannot come up with two progressives willing to make an allegation for money? It can take some time to find people associated in some way with Brett Kavanaugh. But the delays in confirmation are continuing, and that time is increasing.
As you've seen, statements by just about everyone that knows Brett Kavanaugh that he's not the kind of person to treat anyone badly and statements that refute charges and even the actual get together are not enough to get him a vote. All there has to be is an allegation of misconduct, and they put off the voting. Further, they drag Brett Kavanaugh's reputation through the mud in the media.
This is wrong. Our society cannot continue in this fashion.
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