Yet Another Investigation of Judge Brett Kavanaugh

Brett Kavanaugh

Heritage Explains

Yet Another Investigation of Judge Brett Kavanaugh

What exactly is the FBI doing during its additional investigation of Kavanaugh, what happens when it’s over, and what will it mean for the Supreme Court now and perhaps generations from now?

On this episode of the "Heritage Explains" podcast Michelle Cordero talks with John Malcolm, vice president of Heritage’s Institute for Constitutional Government, about what exactly the FBI is doing during its additional investigation of Judge Brett Kavanaugh and more.

MICHELLE CORDERO: More than 20 million people watched last week's testimony by Supreme Court nominee, Brett Kavanaugh and Dr. Christine Blasey Ford, the woman who has accused him of sexual assault that allegedly occurred 36 years ago. CBS News says that's about as many people who watch a playoff football game or The Academy Awards. There were moments that were hard to watch and others that were so gripping, you couldn't look away.


CHRISTINE BLASEY FORD: "I am here today not because I want to be, I am terrified, I am here because I believe it is my civic duty to tell you what happened to me while Brett Kavanaugh and I were in high school."


SENATOR PATRICK LEAHY: "What is the strongest memory you have? Strongest memory of the incident, something that you can not forget. Take whatever time you need."


FORD: "Indelible in the hippocampus is the laughter, the uproarious laughter between the two and their having fun at my expense."


BRETT KAVANAUGH: "This onslaught of last minute allegations does not ring true. I'm not questioning that Dr. Ford may have been sexually assaulted by some person, in some place, at some time but I have never done this to her or to anyone. That's not who I am, it is not who I was. I am innocent of this charge. I intend no ill will to Dr. Ford and her family. The other night Ashley and my daughter Liza said their prayers and little Liza all of 10 years old said to Ashley, 'We should pray for the woman.' That's a lot of wisdom from a 10 year old."


SENATOR LINDSEY GRAHAM: "I can not imagine what you and your family have gone through. Boy, y'all want power. God, I hope you never get it. I hope the American people can see through this sham, that you knew about it and you held it. You had no intention of protecting Dr. Ford. None. She is as much of a victim as you are. God I hate to say it 'cause these have been my friends but let me tell you when it comes to this, you're looking for a fair process you came to the wrong town at the wrong time my friend. Do you consider this a job interview?"

KAVANAUGH: "The advice and consent role is like a job-"

GRAHAM: Do you consider that you've been through a job interview?

KAVANAUGH: "I've been through a process of advice and consent under the Constitution which-"

GRAHAM: "Would you say you've been through hell?"


KAVANAUGH: "I've been through hell and then some."

GRAHAM: "This is not a job interview. This is hell. This is going to destroy the ability of good people to come forward because of this crap."

CORDERO: After 10 hours of questioning, there was no real conclusion. But there was a theme. Heritage expert, Thomas Jipping writes that campaigns of whatever sort often adopt a mantra, a phrase, or even a single word that's repeated over and over to advance the campaign's goal. He says that the campaign against Supreme Court nominee Brett Kavanaugh is no different and it's mantra, especially during last week's testimony has been ... an FBI investigation.

CORDERO: So this week on "Heritage Explains" we decided to break down what exactly the FBI is doing right now during Judge Brett Kavanaugh's seventh investigation. What happens when it's over and what that will mean for the Supreme Court now and perhaps generations from now.

John Malcolm is vice president of Heritage's Institute for Constitutional Government. Thank you so much for joining us, John.


So as you know the Senate Judiciary Committee voted to advance Judge Brett Kavanaugh's confirmation last week but only after another one week investigation into his background. I think there may be some misconceptions out there about what the FBI's role is when it comes to the confirmation process as opposed to maybe what they see the FBI do on TV. Is this is a criminal investigation of Judge Kavanaugh?

JOHN MALCOLM: No it certainly is not a criminal investigation. This is just gathering information as part of a routine background check. By the way Brett Kavanaugh has had six previous background checks for very, very sensitive positions including being a judge in the federal government and having been the subject of background checks myself, the FBI goes and talks to people who have known you at various ages of your life and they ask a lot of questions about how well they know you and whether they've seen you in social circumstances or dealt with you professionally.

They ask questions about your competence, they will frequently ask does the person spend beyond their means or do they have a drinking or a drug problem, they ask an awful lot of questions from an awful lot of people and the two or three times that I've had this done on myself I'm always amazed when I get calls from people who say, "The FBI just asked me questions about you is everything okay?" And I'll say, "Well, they're just being thorough I had no idea they were going to reach out to you but tell them what you know."


CORDERO: So on some of the Sunday shows I heard guests and hosts saying things like, "If the FBI finds a piece of damning evidence," in this case what would you say a piece of damning evidence would look like?

MALCOLM: Well if they found some other witness I suppose who came forward who said, "Yes I was at this party with Brett Kavanaugh and Dr. Ford and saw him do what Dr. Ford claims he did," or heard him bragging about it afterwards, I suppose you could say the same thing about the allegations made by Deborah Ramirez. There have obviously been some people who have come forward who's saying that Brett Kavanaugh did drink a lot in at least college if not high school, I have no idea how much that statement is going to be worth.


Imagine that somebody in high school or as a Freshman or Sophomore in college, occasionally drinking too much, that's of course never happened to anybody else. And you know there's a big difference of course between having too much to drink and blacking out and having too much to drink and attempting to rape somebody. So I don't know how much mileage one will get out of that but there are some people who knew Brett Kavanaugh in college who have said he was downplaying how much he drank. I don't think that's gonna be a particularly earth shattering revelation one way or the other, I don't think it will have an impact on anything but obviously if another witness came forward and said, "Brett Kavanaugh told me that he did these things about which he's been accused," or "I saw him doing these things," that might have some impact.

CORDERO: So in other words something that might make Brett Kavanaugh look as if he wasn't telling the truth?


CORDERO: So after the FBI concludes this process what do they do? Is there a report that they give a committee? Do they make statements? What happens next?

MALCOLM: Yeah so the FBI conducts interviews and then they write up a memorandum of the interview, it's often referred to as a 302 because that is the number assigned to the form that the FBI uses and they will make that part of Brett Kavanaugh's confirmation file and they will provide that to the White House and they'll provide that to the Senate Judiciary Committee.


CORDERO: To both the White House and the Committee get it or does the White House give it to the Committee?

MALCOLM: I'm not sure exactly how that flows but the bottom line is that both sides will ... both the Senate Judiciary Committee and the White House will get it.

CORDERO: So, the media sort of makes this sound normal so I just want to be clear. John, can politicians typically demand that the FBI investigate something like this?

MALCOLM: No. The FBI is an executive branch agency and that directive, if you will, comes from the executive branch. In this case what effectively ended up happening is the Senate Judiciary Committee and leader McConnell asked the White House if they would be willing to ask the FBI to do this and the Trump, you know President Trump asked the FBI to do this. They said it was gonna be a limited investigation, limited to what they refer to as credible allegations and that it was to be completed in a week or less.

CORDERO: So, so far 110 Trump nominees have been stalled by Democrats and this a historical amount. If this is the course our country takes and a new precedent that's set for confirming and vetting nominees, what do you think that means for the future of America's courts?

MALCOLM: Oh well it's bad. I'm assuming the 110 that are stalled, I don't know whether those are just judicial branch nominees. I suspect that there are a lot more executive branch nominees. The Senate Judiciary Committee has actually been moving faster on judicial nominees than it has been on executive branch nominees. Look these stalling tactics that the Democrats are employing by forcing closure votes and up to 30 hours of post closure debate on every nominee, even non controversial nominees sets a terrible precedent. I mean there's literally been the case in which President Trump has renominated people who had originally been nominated by President Obama.

The Democrats rather than saying that's great and just waving the person through has forced the Senate to take closure votes and then to eat up floor time in terms of 30 hours of post closure debate only to see these people then confirmed unanimously. It is a stalling tactic, it is designed to frustrate the Trump Administration from proceeding on some of it's directives in filling these key positions and it's a terrible way to govern.

CORDERO: Heritage has reported that we have a vacancy crisis. What does that cause?

MALCOLM: Well, I don't know whether it would ... there's certainly a vacancy crisis in the executive branch. You have a lot of political positions that require Senate confirmation that are not being filled. So the people who are serving in these roles are there in an acting capacity and a lot of control ends up being seated to career people in these various agencies. Some of them are hard working and very, very competent, in fact I'm sure that many of them are but I am quite sure that a number of them do not see eye to eye with the president in terms of fulfilling his agenda and would be what President Trump would euphemistically refer to as being part of the swamp.

In terms of judges, there are some districts that have a so called judicial crisis in that they have a very few number of judges, a huge backlog in cases. If they are criminal cases, rights are affected because criminal defendants have a right to a speedy trial and of course if they are civil litigants because criminal cases take priority, civil cases won't get heard for years. That doesn't provide justice to anybody.

CORDERO: So let's see two scenarios here. Let's say that the FBI finishes their investigation and let's say it looks good for Judge Kavanaugh and they're going to move forward with his nomination. What's the next step? What happens from there?

MALCOLM: Well the next step is that Leader McConnell has to file a motion for closure on the Senate floor which will be voted upon. After that, that will trigger the 30 hours of post closure debate and then they will vote. I mean as you know an overwhelming majority of Democrats declared that they were opposed to Judge Kavanaugh before the hearings ever began and anyone had ever heard of Dr. Christine Blasey Ford. Indeed there are a whole number of Democrats who declared their opposition to President Trump's nominee before there actually was a nominee. So this investigation is designed to be thorough because a few senators who are on the bubble if you will on either the Republican side or the Democratic side requested that it be done and Senator Grassley and Leader McConnell and President Trump are sort of bending over backwards and you're already hearing calls from a number of Democrats that this isn't gonna be enough and they need more and today Bernie Sanders, the senator from Vermont said, "Oh and they also need to investigate whether or not Brett Kavanaugh perjured himself during these proceedings."


So there'll be a, for most of the people on the Democratic side, there will never be enough process. They had announced their opposition to him a long time ago anyway so it doesn't really matter to them. But, this is being done and we will see how those senators on the bubble vote once this process is completed.

CORDERO: Could they technically and officially stall further or does the buck stop there?

MALCOLM: Well, you know I think the buck stops. The only way I suppose that might change, I mean you know this is gonna be a very, very close vote. I mean if those few senators who are going to be the deciding votes say, "We want more or else we're going to do whatever, not vote or vote against him," you know that might put pressure to delay the process. That's exactly what Senator Flake did in the senate Judiciary Committee, he said, "I'm going to want additional investigation," and immediately Lisa Murkowski and Heidi Heidkamp who fall into that category of senators in the bubble immediately said, "I want to see that too." At some point, my guess is they're gonna say, "Okay look, we asked the FBI to do more, they did more now it's time to vote."

CORDERO: Okay so in conclusion, the other side of that, Brett Kavanaugh has to withdraw his nomination?

MALCOLM: You mean if that were to happen?

CORDERO: What happens then?

MALCOLM: Well, if that were to happen and I do not believe that is going to happen then President Trump would have to come up with another nominee and we would start the process all over again. How quickly he would do that I don't know, he has already said he doesn't have a plan B, how quickly he would come up with plan B is anybody's guess. They certainly would not have a confirmation hearing and a vote before the midterm elections, whether they would try to do that during a lame-duck session I don't know but I expect that this is all going to be a far fetched hypothetical 'cause I fully expect Brett Kavanaugh to receive a vote and I actually expect that he'll be confirmed.

CORDERO: Thank you so much John.

MALCOLM: Great to be with you.

CORDERO: That's it for today's episode of Heritage Explains. Please share our show with your friends on social media and subscribe wherever you get your podcasts. Also comments, we really need more comments. Please leave them on iTunes and give us some topic suggestions. I would love to hear from you. Conservatives really need your support in the podcasting world and the more ratings and comments we get on iTunes the better. Thanks and we'll be back next week.