FBI review of Kavanaugh was limited from the start

An exasperated President Donald Trump picked up the phone to call the White House counsel, Don McGahn, last Sunday. Tell the FBI they can investigate anything, he told McGahn, because we need the critics to stop.

Not so fast, McGahn said.

McGahn, according to people familiar with the conversation, told the president that even though the White House was facing a storm of condemnation for limiting the FBI background check into sexual misconduct allegations against Judge Brett Kavanaugh, a wide-ranging inquiry like some Democrats were demanding — and Trump was suggesting — would be potentially disastrous for Kavanaugh’s chances of confirmation to the Supreme Court.

It would also go far beyond the FBI's usual “supplemental background investigation,” which is, by definition, narrow in scope.

The White House could not legally order the FBI to rummage indiscriminately through someone’s life, McGahn told the president. And without a criminal investigation to pursue, agents could not use search warrants and subpoenas to try to get at the truth.

Trump backed down, although he said publicly the next day that the FBI “should interview anybody that they want within reason.” But the episode on Sunday was further evidence of the confusion, including on the part of the president, about what would happen after Sen. Jeff Flake, R-Ariz, forced a one-week delay in the confirmation vote of Kavanaugh to the Supreme Court by calling for a new FBI investigation.

From the start, there were different expectations. Democrats hoped for a full investigation into the allegations, even as they were sceptical that one would occur and angrily said on Friday that the White House had quashed it. In all, 10 people were interviewed, and an 11th declined to cooperate.

But the FBI did not interview the two people at the centre — Kavanaugh and his main accuser, Christine Blasey Ford.

A television reporter outside the White House in Washington, Oct 4, 2018. The New York Times

Rep Jerrold Nadler, D-NY, declared the FBI efforts to be “a whitewash” and vowed to open a new investigation into the sexual misconduct allegations if Democrats take control of the House in November’s elections.

“We have to assure the American people either that it was a fair process and that the new justice did not commit perjury, did not do these terrible things,” Nadler said.

But White House and former FBI officials, who spoke on the condition of anonymity to discuss the inquiry, said the weeklong examination of the charges against Kavanaugh was similar to the many previous times the bureau has been asked to update a background check of a nominee to account for new information.

People familiar with the process say the White House is always in charge of background checks and can limit the scope of the questions FBI agents can ask and who they can interview.

In the case of Kavanaugh, McGahn instructed the FBI to do an additional background check focused exclusively on the sexual misconduct charges levelled by three women.

In talking with Republican senators, White House officials said, it became clear to McGahn that there were four people whom senators wanted to be interviewed: Deborah Ramirez, who alleged that Kavanaugh exposed himself to her during a college party; Mark Judge, a high school friend who was said to have witnessed an assault by Kavanaugh on Blasey at a high school party; and two other friends who Blasey said were at that party, PJ Smyth and Leland Keyser.

Late Friday, Blasey’s legal team sharply criticised the inquiry and said in a statement that “an FBI investigation that did not include interviews of D Ford and Judge Kavanaugh is not a meaningful investigation in any sense of the word.”

The goal of the inquiry, White House officials said, was to look for witnesses who had first-hand accounts of sexual misconduct. The inquiry would not include questions about whether Kavanaugh was frequently drunk or had been misleading in his Senate testimony.

Armed with that list, FBI agents began conducting the interviews.

The White House was kept informed as the agents did their work, with summaries of the interviews — known as “Form 302s” — sent to the White House as they were completed.

Demonstrators chant during a protest opposing the Supreme Court nomination of Judge Brett Kavanaugh in the Hart Senate Office Building in Washington, Oct 4, 2018. The New York Times

Officials said that in a typical supplemental background check inquiry, agents would be required to ask the White House for permission to expand beyond the initial list of interview subjects.

But they insisted that the FBI was not required to do that in the case of the allegations against Kavanaugh. Over the course of the week, they said, agents decided to add a handful of other interviews to the inquiry.

According to a list distributed by the Senate Judiciary Committee, FBI agents also interviewed Timothy Gaudette and Christopher Garrett, two high school friends of Kavanaugh who were listed in the judge’s 1982 calendar as having attended a high school party. In addition, agents interviewed a lawyer of one of the friends.

Agents also interviewed two potential eyewitnesses to the episode alleged by Ramirez, as well as one of her close friends. The FBI did not identify the three, but two of them were Kevin Genda and Karen Yarasavage, who are now married and knew Ramirez and Kavanaugh in college, according to a lawyer briefed on the matter. Genda and Yarasavage were each interviewed for more than two hours, according to the lawyer. And although Genda was viewed as a potential witness to the episode, it is not clear whether their statements offered any support for Ramirez’s account.

In addition, the FBI agents collected written statements that had been submitted to them from other people, officials said. Those statements were also sent to the White House and forwarded to the Senate Judiciary Committee, officials said.

The contents of the interviews have not been made public. Early Thursday, the White House sent the summaries of the interviews to the Judiciary Committee, which made them available to senators.

White House officials insisted that neither McGahn nor any other West Wing lawyer prohibited the FBI from interviewing them. But some former law enforcement experts said it was an odd decision not to include the two people at the centre of the controversy.

Robert Cromwell, a former FBI agent who oversaw sensitive background investigations of political appointees, doubted that agents decided not to interview Blasey and Kavanaugh on their own.

 “I don’t think that it was in the parameters of the request,” he said. “That’s what I would assume. It would be frustrating as an investigator. The nature of investigators is to get to the bottom line. You’d want to talk to both of them.”

© 2018 New York Times News Service