Alternatives to FBI Investigation

by Michael C. Dorf

As the artificial deadline approached for Dr. Christine Blasey Ford to accept the invitation of Senate Judiciary Chair Chuck Grassley to testify by his completely artificial deadline of Monday, word came yesterday that she and her lawyers were trying to negotiate better terms. I  have no idea whether such negotiations will work and therefore she will testify some time later next week, whether she will cave and testify on Monday, whether stalemate will reign and the Republican-controlled chamber will proceed to a vote on Judge Kavanaugh's nomination, or whether some hitherto unimagined new development will take us all in a new direction.

Meanwhile, the claim by Grassley that the FBI can't conduct further investigation following a  nomination doesn't pass the laugh test. Grassley wrote of the Senate: "We have no power to commandeer an Executive Branch agency into conducting our due diligence" (double emphasis in original). That's true, kind of, except that the Senate does have the power to refuse to confirm a nominee unless the Executive Branch does some further work. One might even say that this is, in appropriate cases, a duty of the Senate as part of the "advice" it gives to the president before it gives its "consent."

Perhaps by the time readers encounter this column, Grassley will have softened his position, but even if not, there will be further investigation of Dr. Blasey's allegations. Here I'll examine two possible avenues.

Prof. Ron Krotoszynski notes that if the Democrats win control of the House in November, they can investigate whether to impeach by-then-Justice Kavanaugh based on either perjury charges for falsely denying Blasey's allegations or for the underlying alleged conduct itself. Krotoszynski suggests that such an inquiry would not be futile--even given the fact that Republicans will surely have more than enough Senate votes to defeat removal on a party-line vote--because "Republican senators may find it hard to vote 'no' in the #metoo era."

That strikes me as naive. I believe that at least 34 Republican senators would actually find it easy, regardless of what the House finds.

Nonetheless, a House impeachment investigation, using all the tools at the disposal of the House, would be valuable even if there is no realistic prospect of senators agreeing to remove Kavanaugh. It might clear him. Or it might show what a terrible injustice his confirmation was if, as may happen, that occurs without a thorough investigation by the Senate or the FBI. Either way, the investigation would be useful.

But one need not count on the rather exotic possibility of impeachment. Thorough investigation is occurring already. Investigative reporters are on the job. The New Yorker's Ronan Farrow and Jane Mayer are no doubt beating the bushes. I know personally that the Washington Post has numerous reporters on this story.

I know that because twice in the last few days I have been contacted by WaPo reporters wanting to know what I recall of Kavanaugh from our brief time together as summer associates at Covington & Burling in 1989. (The answer is I recall almost nothing about him from that time other than meeting him and exchanging pleasantries.) If reporters are trying to interview me--a guy who has already said publicly that I don't know Cavanaugh very well, and only that from long after the event in question--they are no doubt tracking down hundreds, if not thousands, of people.

Now, of course the New Yorker, the Washington Post, and other news outlets lack subpoena power, so in that sense they are not perfect substitutes for the FBI or a full congressional inquiry. And lying to the FBI is a crime, whereas lying to a journalist is not, making statements to the FBI more credible.

But investigative journalism has nonetheless played a key role in the #MeToo movement, often catalyzing law enforcement. Hence, I wouldn't count out the possibility that if there were a hearing next week, Democratic senators or their agent could ask questions based on reports that could be published by then. So, for that matter, could Republican senators, depending on what enterprising journalists following the story wherever it leads manage to turn up.

Suppose, however, that the negotiations between Dr. Blasey's lawyers and the Senate Republicans do not yield a breakthrough, so that she doesn't testify. Or suppose that there is a hearing, but that it happens before reporters or government investigators are able to get to the bottom of the matter. If Kavanaugh were then confirmed AND thereafter enterprising investigative reporters were to uncover powerful evidence that Blasey's account is accurate -- corroborating contemporary witnesses, say, or perhaps credible accusations by other women of additional similar incidents -- at that point all bets are off. Why? Because while I disagree with Prof Krotoszynski that even very strong evidence would lead 2/3 of the Senate to vote for removal after impeachment, I think that in such circumstances Kavanaugh himself might choose to step down from the bench--following the path of his friend and mentor Judge Kozinski.

Let me be crystal clear that I have no idea whether any of that is at all likely. Maybe this is all a tragic case of mistaken identity (although Blasey dismissed that possibility yesterday, stating there is "zero chance" that she confused Kavanaugh with another student who resembled him, as proposed by one Kavanaugh ally). My point is that the likelihood of further investigations by journalists holds some peril here for Republicans who want to see a deeply conservative majority on the SCOTUS lickety-split.

I wrote earlier in the week that the stakes for the country of the Kavanaugh confirmation are low because even if Kavanaugh withdraws or is not confirmed, someone with views very much like his would be confirmed quickly but in any event no later than the end of the lame-duck session if Democrats manage to win the Senate in the midterms. I now think I overlooked the possibility that Kavanaugh would be confirmed but end up resigning after further investigation by journalists either vindicates Blasey or turns up other skeletons.

A Republican senator who is eager to confirm Kavanaugh or a like-minded jurist but thinks there is at least some non-trivial possibility that Blasey's allegations are true should want further investigation before voting to confirm him. Otherwise, such a senator risks placing Kavanaugh on the Court with the possibility that he would end up resigning at a time when Republicans no longer control the Senate.