Lindsey Graham Needs To Pursue Those Who Lied During The Kavanaugh Debacle

Lindsey Graham Needs To Pursue Those Who Lied During The Kavanaugh Debacle

What will it take for the Senate to be interested in investigating potential lies––violations of federal law––by Dr. Christine Blasey Ford and others?
Margot Cleveland
By

Since taking over three weeks ago as chairman for the Senate Judiciary Committee, Sen. Lindsey Graham has already staked out several key priorities for the committee. The list will please conservatives: confirm more judges and investigate the Department of Justice (DOJ) and FBI for their handling of the Russia collusion investigation, the Hillary Clinton email investigation, and the use of Foreign Intelligence Surveillance Act (FISA) to obtain a warrant to surveil former Trump campaign aid Carter Page.

Yet Graham has so far omitted an equally significant area of inquiry for the Senate Judiciary Committee: the possible criminal conduct undertaken to thwart the confirmation of now-Supreme Court Justice Brett Kavanaugh.

Was There Criminal Conduct in the Kavanaugh Debacle?

The public may have quickly forgotten the month-long spectacle that began after news broke on September 12, 2017—five days after the Senate Judiciary Committee had concluded hearings on Kavanaugh’s nomination—that an unnamed woman had sent Sen. Dianne Feinstein a letter accusing Kavanaugh of sexual misconduct. The following day, Feinstein, the top Democrat on the Senate Judiciary Committee, issued a terse press release confirming that she had “received information from an individual concerning the nomination of Brett Kavanaugh to the Supreme Court.”

Feinstein’s three-sentence statement provided no details, asserting that the accuser had requested confidentiality. Feinstein added that she had “referred the matter to federal investigative authorities.”

Ford then outed herself to The Washington Post as the author of the letter, with the newspaper reporting on September 16 Ford’s claim that Kavanaugh had sexually assaulted her while the two were in high school. Then-Senate Judiciary Committee Chair Chuck Grassley immediately sought to interview Ford, but her attorneys kept Ford under wraps until September 27, when Ford testified under oath before the committee.

Between the time Ford first detailed her charges against Kavanaugh in her letter to Feinstein (dated July 31, 2018) and her late-September testimony to the Senate Judiciary Committee, many of the details changed. As sex crimes prosecutor Rachel Mitchell explained in the report she drafted after questioning Ford on behalf of Republicans on the Judiciary Committee, Ford provided inconsistent accounts concerning nearly every aspect of the alleged assault.

Ford’s changing stories could be chalked up to confusion and thus would be unlikely to establish criminal conduct. But, in testifying under oath to the Senate Judiciary Committee, Ford made at least one statement that likely contained a materially false claim—a potential violation of 18 U.S.C. §§ 1001 and 1505, which respectively define federal criminal offenses of knowingly and willfully making materially false, fictitious, or fraudulent statements to Congress and obstruction of Congress.

The Polygraph Fracas and Other Potential Lies

Specifically, in response to Mitchell’s inquiry on whether she had “had discussions with anyone, beside [her] attorneys, on how to take a polygraph?” Ford responded “Never.” When Mitchell clarified the question by noting, “I don’t just mean countermeasures, but I mean just any sort of tips, or anything like that,” Ford answered “No.”

Ford’s sworn testimony conflicts with a statement provided committee investigators by a man who dated Ford for six years. Ford’s former boyfriend stated: “During some of the time we were dating, Dr. Ford lived with Monica L. McLean, who I understood to be her life-long best friend. During that time, it was my understanding that McLean was interviewing for jobs with the FBI and the US Attorney’s Office. I witnessed Dr. Ford help McLean prepare for a potential polygraph exam. Dr. Ford explained in detail what to expect, how polygraphs worked and helped McLean become familiar and less nervous about the exam. Dr. Ford was able to help because of her background in psychology.”

Ford made several other dubious statements to the Senate Judiciary Committee. For instance, she feigned a fear of flying, even though she regularly traveled for work and pleasure. Ford’s former boyfriend also wrote in his statement that “Dr. Ford never indicated a fear of flying,” and that while in Hawaii, the couple had “traveled around the Hawaiian islands including one time on a propeller plane.”

Ford also claimed that as, a result of the supposed assault, she was claustrophobic, and that her fear of confined spaces prompted her to install a second door on her family home. But her ex-boyfriend and other individuals interviewed by committee investigators stated that Ford had never expressed a fear of small spaces.

Further, in response to Feinstein’s request for Ford to detail how the alleged assault affected her life, Ford testified that the “primary impact was in the initial four years after the event,” and that when she went to college “she had a very hard time, more so than others, forming new friendships and especially friendships with boys.” Yet in statements provided to committee investigators, college classmates of Ford’s refuted her claims, explaining that Ford “regularly attended parties with members of [a classmate’s] fraternity” and she “had an active and robust social life in college.”

The Question of Proving Ford’s Wrongdoing

It would be extremely difficult to prove Ford lied about her fear of flying or her difficulty at forming friendships in college because of the subjectivity involved. However, the same cannot be said of Ford’s testimony that she had not discussed how to take a polygraph examination with anyone besides her attorneys. Either Ford lied to the committee, or her former boyfriend lied to committee investigators when he stated that Ford had helped McLean prepare for a potential polygraph examination.

Significantly, the questions posed to Ford concerning the polygraph examination were also material to the committee’s work. After Ford went public with her accusations, Senate Democrats pointed to the polygraph as justification for reopening the investigation into Kavanaugh. Then during the Judiciary Committee hearing, Democratic Sen. Amy Klobuchar admitted the polygraph report into the committee record and noted it found that Ford was “being truthful when [she] described what happened to [her].”

Sen. Richard Blumenthal pointed to the polygraph as a reason why he believed Ford. Sen. Kamala Harris likewise announced “I believe you,” explaining “You have passed a polygraph and submitted the results to this committee.” Under these circumstances, Graham should refer this matter to the DOJ and FBI for further investigation.

Plenty of DOJ Investigations Are In Order

Graham should also consider asking the DOJ to investigate Ford’s lifelong friend McLean for potential witness tampering. As Grassley explained in his concluding memorandum on the committee’s investigation, Ford had identified her high school friend, Leland Keyser, as one of the individuals at the party the night of the alleged assault. Keyser, however, told the committee (through an attorney): “Simply put, Ms. Keyser does not know Mr. Kavanaugh and she has no recollection of ever being at a party or gathering where he was present, with, or without, Dr. Ford.”

Less than a week later, the day after Ford testified to the Senate Judiciary Committee, Keyser’s attorney sent a second email to the committee, explaining that “Keyser had asked that I communicate to the Committee her willingness to cooperate fully with the FBI’s supplemental investigation of Dr. Christine Ford’s allegations against Judge Brett Kavanaugh.”

While Keyser reiterated that “she does not know Judge Kavanaugh and has no recollection of ever being at a party or gathering where he was present, with, or without, Dr. Ford,” the second email stressed that “Keyser does not refute Dr. Ford’s account, and she has already told the press that she believes Dr. Ford’s account,” but that “the simple and unchangeable truth is that she is unable to corroborate it because she has no recollection of the incident in question.”

After Keyser updated her statement to Judiciary Committee, the Wall Street Journal reported that Keyser “told FBI investigators that she felt pressured by Dr. Ford’s allies to revisit her initial statement that she knew nothing about an alleged sexual assault by a teenage Brett Kavanaugh, which she later updated she believed but couldn’t corroborate Dr. Ford’s account.” According to the Journal, McLean was one of the individuals who pushed Keyser to “clarify” her statement.  McLean’s attorney responded saying claims that McLean pressured Keyser were false.

In Grassley’s final memorandum to Senate Republicans, the outgoing chair noted that “Committee investigators continue to pursue this lead to determine whether McLean or others tampered with a critical witness.” But then came midterm elections and the Senate’s recess, and no further movement on this case.

Ignoring This Would Bode Ill for Future Nominations

That is not all: Nothing has yet come from the three criminal referrals already made related to the Kavanaugh proceedings.

First, Grassley referred an unnamed individual to the DOJ and FBI for investigation of potential violations of 18 U.S.C. §§ 1001 and 1505, for making materially false statements to the committee as part of its investigation of allegations against Kavanaugh. The individual referred for further investigation had told Whitehouse that in 1985, Kavanaugh had sexually assaulted a close acquaintance on a boat in the harbor of Newport, Rhode Island. Committee staff questioned Kavanaugh on the allegations, and after the committee publicly released a redacted transcript of that interview, the individual recanted his story and apologized. To date, though, no charges have been brought.

No charges have been filed either against lawyer Michael Avenatti and his client Julie Swetnick, even though Grassley referred both individuals to the DOJ and FBI for investigation of potential violations of 18 U.S.C. §§ 371, 1001, and 1505, for making materially false statements to the Judiciary Committee. In his referral, Grassley laid out a solid case for criminal prosecution against the duo, who paraded an incredible tale of Kavanaugh’s supposed involvement in a high school gang-rape clique. Yet no charges have been filed.

Although the Democrats’ ploy to destroy Kavanaugh with last-minute allegations of sexual misconduct failed to derail his ascent to the Supreme Court, the precedent set should perjury go unanswered cannot be overstated. From his fiery performance during confirmation hearings, Graham seemed to understand the significance of allowing character assassination to do in a Supreme Court nomination—not merely at the political level, but at the personal levels as well.

But now that Graham holds the gavel, will he act? Will he demand answers from the DOJ and FBI on the criminal referrals? And will he refer Ford and McLean for investigation? If he doesn’t, he will be legitimizing one of the most despicable political ploys in recent memory.

A former version of this article incorrectly stated the month the Washington Post first published Blasey Ford’s claims.

Margot Cleveland is a senior contributor to The Federalist. Cleveland served nearly 25 years as a permanent law clerk to a federal appellate judge and is a former full-time faculty member and current adjunct instructor at the college of business at the University of Notre Dame. The views expressed here are those of Cleveland in her private capacity.

Copyright © 2019 The Federalist, a wholly independent division of FDRLST Media, All Rights Reserved.