The Limits of the FBI’s Kavanaugh Probe

The Trump administration denies multiple news reports that the background investigation has been circumscribed, and says the FBI has free rein.

Senator Amy Klobuchar of Minnesota (Jim Bourg / Reuters)

On CNN’s State of the Union on Sunday, the presidential adviser Kellyanne Conway said the White House was not trying to interfere in a supplemental FBI background investigation into sexual-misconduct allegations lodged against Brett Kavanaugh by three women: “We trust the hardworking men and women of the FBI to do their jobs, and they will determine what will be included within that scope.” She did add, “It’s not meant to be a fishing expedition.”

When the host, Jake Tapper, asked whether White House Counsel Don McGahn put limits on who can be interviewed, Conway was less specific: “I don’t think Don McGahn would do that, but I’ve not talked with him about it.”

In a powerful moment, Conway explained why she could feel empathy with victims of sexual misconduct. She cleared her throat, looked down for a moment, and said, “I’m a victim of sexual assault. [But] I don’t expect Judge Kavanaugh or Jake Tapper or Jeff Flake or anybody to be held responsible for that.”

Senator Amy Klobuchar of Minnesota, a Democrat on the Senate Judiciary Committee, said on CBS’s Face the Nation that investigators must be able to follow the evidence where it leads without artificial White House constraints. “They cannot say, ‘Oh hey, only interview the people in their neighborhood on one side of the street’ … You let the professionals of the FBI do their jobs.”

The national drama began Thursday when Kavanaugh testified before the Judiciary Committee and adamantly denied the psychologist Christine Blasey Ford’s allegation that he had sexually assaulted her when they were in high school in the early 1980s. Nielsen estimated that television viewers exceeded 20 million people, matching the audience for a playoff football game or the Academy Awards. Travelers told of row after row of airplane passengers with the hearing on their in-flight screens.

On Friday, retiring Senator Jeff Flake’s last-minute “gentleman’s agreement” with the Democrat Chris Coons of Delaware led to a reopened FBI investigation with a one-week timeline, delaying a scheduled Senate vote on Kavanaugh’s nomination. The GOP senator, an outspoken Donald Trump critic who decided not to seek reelection in the face of a likely primary defeat, told The Atlantic that he hoped a week of inquiry could “bring a little unity” and leave Democrats feeling that “this process was worthy of the institution.”

On Saturday, NBC reported that Julie Swetnick, a woman represented by the lawyer Michael Avenatti who has accused Kavanaugh of being present when she was sexually assaulted as a high-school student, would not be interviewed and that “the White House counsel’s office has given the FBI a list of witnesses they are permitted to interview.” The Wall Street Journal also reported that anonymous sources said the investigation was being “tightly controlled” by the White House, excluding Swetnick. While senators had requested an investigation “limited to current credible allegations,” the expectation was that investigators would make their own decisions about whom to interview.

Senator Dianne Feinstein of California, the top Democrat on the Judiciary Committee, quickly tweeted, “The FBI’s hands must not be tied in this investigation. We need the facts.”

But within hours of the NBC report, President Trump told reporters the FBI had “free rein” in the investigation. He later tweeted a rebuttal that criticized NBC and added, “I want them to interview whoever they deem appropriate, at their discretion.”

So what’s the truth? Is the White House setting limits on who can be interviewed?

White House Press Secretary Sarah Huckabee Sanders, speaking on Fox News Sunday, also denied political control and pointed to the Senate’s request for a limited investigation: “The White House is not micromanaging this process. The Senate is dictating the terms. They laid out the request. We’ve opened it up. As you heard the president say, do what you need to do. The FBI, this is what they do, and we’re out of the way and letting them do exactly that.” But she also said, “This can’t become a fishing expedition like the Democrats would like to see it be.”

When the host, Chris Wallace, asked if the White House counsel had given a list of allowed witnesses, Sanders replied, “Not that I’m aware of. The White House counsel has allowed the Senate to dictate what these terms look like and what the scope of the investigation is.”

Senator Lindsey Graham, the South Carolina Republican who sits on the Judiciary Committee, argued that it was senators who requested a limited rather than an open-ended investigation. He said it was proper that the FBI would not look at Swetnick’s allegations of participation in gang rapes, calling her claim “outrageous” and saying that “not one Democrat mentioned it” during Thursday’s hearing.

On the Sunday shows, two Judiciary Committee Democrats de-emphasized the account of Swetnick, whose interview with Showtime’s The Circus is scheduled to air at 8 p.m. on Sunday.

When George Stephanopoulos, the host of ABC’s This Week, asked whether Swetnick’s allegations were credible, Senator Mazie Hirono of Hawaii argued that, like Ford, Swetnick had no motivation to come forward except to tell the truth. And she pointed out that Swetnick has sought to speak with the FBI, pointing a finger at Kavanaugh for declining to ask for more FBI investigation during the Thursday hearing.

On State of the Union, Tapper also asked Klobuchar about Swetnick’s credibility. The senator responded, “I don’t know, Jake. I think she has to be interviewed by the FBI … She did sign an affidavit, and I think it needs to be looked into.”

Will FBI agents get to decide whom to interview in this reopened background check? The New York Times reported Saturday that only four witnesses were on a list drafted by Senate Republicans, including the second accuser, Deborah Ramirez, who has alleged that Kavanaugh exposed himself to her after a night of heavy drinking during their freshman year at Yale. If those interviews “open new avenues of inquiry,” the Times wrote, “the White House can order investigators to further examine the allegations.”

It’s clear that this is a limited investigation, as Senate Republicans had requested following Flake’s stand. But it’s not clear who’s setting the limits—which opens the door to a partisan blame game over the inquiry, extending the high drama over the high court.

On Sunday afternoon, the president tweeted that the “Obstruct and Delay” Democrats were starting to complain about the duration and scope of this week’s FBI probe. He added: “Hello! For them, it will never be enough—stay tuned and watch!”