Jurisprudence

The New Kavanaugh Reporting Shows How Far Trump’s Control Goes

The FBI, the DOJ, SCOTUS—Trump controls it all.

Brett Kavanaugh being sworn in before the Senate Judiciary Committee during his Supreme Court confirmation hearing on Sept. 4, 2018.
Brett Kavanaugh being sworn in before the Senate Judiciary Committee during his Supreme Court confirmation hearing on Sept. 4, 2018.
Drew Angerer/Getty Images

It’s already been widely noted that the New York Times buried breaking news about Supreme Court Justice Brett Kavanaugh’s alleged tendency, as a college student, to touch people with his penis when intoxicated. On Sunday, when the Times ran a forthcoming book excerpt from its own reporters, Robin Pogrebin and Kate Kelly, it not only put the news in its Opinion section, it also placed the details of the second allegation in a remote paragraph under an appallingly random headline: “Brett Kavanaugh Fit In With the Privileged Kids. She Did Not.” Don’t even get me started on the grotesque tweet that accompanied the excerpt (which had to be deleted and then apologized for), or the editor’s note that popped up Sunday night to clarify that the story had previously failed to mention, “reports that the female student [whom Kavanaugh allegedly touched with his penis] declined to be interviewed and friends say that she does not recall the incident.” The entire debacle detracts from what is, by all accounts, a deeply researched and reported book.

But the real sin unearthed by the excerpt isn’t that there was a second account, that another former Yale student allegedly remembers seeing Brett Kavanaugh behave in disturbing and inappropriate ways. The real sin is that this former student, Max Stier, went to Delaware Sen. Chris Coons and then the leadership of the Senate, way back in the fall of 2018, to try to tell them what he remembered. And the real sin is that the FBI never investigated it. Indeed, the FBI didn’t talk to any of the 25 individuals given to them by Debbie Ramirez’s lawyer, or any of the multiple witnesses who came forward to the FBI of their own volition (including a former roommate who believed Ramirez and published his own account of Kavanaugh’s college behavior in Slate). But the FBI didn’t talk to these people because the FBI never even spoke to Brett Kavanaugh about the alleged events. The FBI never spoke to Christine Blasey Ford, either. The FBI did interview Ramirez last October and found her “credible,” but then just left it at that. According to the new reporting, an agent told her lawyers that “We have to wait to get authorization to do anything else.” They did not get that authorization, and they did nothing else.

We know all of this because we lived through it. We knew all along that the FBI “investigation” was a sham, a diversion used by three Republican senators to provide cover for their later decision to confirm Kavanaugh to the highest court in the land. Yes, these senators asked for further investigation after Ford testified, but the scope of the so-called inquiry was limited to 10 witnesses and needed to be over in a week, so it never had much hope of being a real investigation. The White House and Republicans on the Senate Judiciary Committee so roundly constrained the investigation that the two main witnesses themselves were never questioned.
Only those who had allegedly witnessed sexual assaults were evidently deemed worthy of questioning. And the FBI felt it had no inherent authority to do an investigation into anything that wasn’t criminal—and even if it had such authority, the FBI knew it was, in effect, working for the White House.

Even as the FBI worried internally that this shamefully thin investigation would erode the credibility of the agency, it felt constrained to do anything else, so it did nothing else. We knew all of this last September, because that’s when NBC reported that the FBI had failed to contact over 40 people who came forward with material information about Kavanaugh, including several who had begged to be interviewed. And we now know that Coons, himself a member of the Judiciary Committee, asked for the FBI to investigate a third claim, and it failed to do so.

Despite this laughably brief and shoddy inquiry, Senate Republicans used it to say the case was closed. As Pogrebin and Kelly note, in the wake of no investigation of Ramirez’s claims, Sen. Charles Grassley, Iowa Republican and chairman of the Judiciary Committee, concluded, “There is no corroboration of the allegations made by Dr. Ford or Ms. Ramirez.” Of course there was no corroboration. There was no investigation.

Unsurprisingly then, in the time since the FBI’s “investigation,” new books have uncovered multiple people who were told of the assault on Ramirez at the time and a possible third assault that was never even considered by the FBI. As time goes on (another Kavanaugh book is in the works), there will be more stories, and there will be more corroboration. As this is reported, Donald Trump and Texas Sen. Ted Cruz will cry “witch hunt” because, they will say, there was already an investigation—and the only thing more suspect than a lone accuser is a fistful of them. Also, as Kavanaugh was quick to tell us himself last October, if there is more than one accuser, we should dismiss them because it was “a calculated and orchestrated political hit” meant to avenge the Clintons.

The lesson that we should take away from this whole sad state of affairs is that every arm of the federal government formally works for Trump. Recall that the second highest honor given out at the Justice Department—usually reserved for prosecutors who triumph in major litigation—was awarded last week, by Attorney General Bill Barr, to the team that shepherded the Kavanaugh confirmation. Like the FBI, the DOJ works for the president, which perhaps explains why his first tweet on Sunday demanded that “the Justice Department should come to his rescue.” And in the event that you missed it last week, in voting to allow Trump’s wall to be constructed, thus allowing the DOJ to leapfrog over federal courts in a way that almost never happens, Trump’s Supreme Court is increasingly acting as a tool to enforce his whims and fancies, and doing so at high speeds, without bothering with intermediate court review.

Just to recap then, the Republican Party pushed through a Trump nominee with almost no opportunity for standard vetting, then held a sham hearing at which Christine Blasey Ford was questioned by a sex crimes prosecutor and Brett Kavanaugh screamed at Democratic senators about conspiracy theories and beer. They didn’t call Debbie Ramirez at all, and then they crafted an FBI process, guarded jealously by themselves and the White House to ensure that nobody who knew anything would be interviewed. Barr, who will be hosting a Christmas party at a Trump Hotel, awarded the DOJ lawyers who worked to confirm Trump’s nominee with a prestigious prize. And the Supreme Court, led by two Trump nominees, is on track to make sure that no federal courts stand in the president’s way.

The horrifying thing that was revealed on Sunday was not that the Times botched the delivery of the story, or even that there are now multiple allegations that a Supreme Court justice has harassed women with his exposed penis to keep track of. The horrifying thing is that we knew enough to know all of this last fall—and then, as now, there was no road to accountability, no way to demand a real investigation, no path to delay the process that would end in a lifetime appointment. This week’s revelations prove without a doubt that the crime-fighting, fact-finding, and legislative entities that are supposed to be checks on the president’s power all do his bidding in service of building a court that will do the same.