The New York Times leaves out several key details from a report that tries to cast a cloud of suspicion over Supreme Court justice Brett Kavanaugh.
The New York Times leaves out several key details from a report that tries to cast a cloud of suspicion over Supreme Court justice Brett Kavanaugh.
O n Thursday, the New York Times published a report on the three-year-old battle over Brett Kavanaugh’s confirmation to the Supreme Court that attempts to cast a new cloud of suspicion over Justice Kavanaugh.
The Times’ Kate Kelly reported that, in a letter to Democratic senators dated June 30, 2021, the FBI said that it had received 4,500 tips on a tip-line set up during a supplemental background investigation of Kavanaugh, and that the most “relevant” of the tips were referred to the Office of White House Counsel, the entity that had requested the supplemental background investigation.
“The letter left uncertain whether the FBI itself followed up on the most compelling leads,” Kelly noted.
But the Times’ report leaves out three key details that would have helped both to clear the air and to clear Kavanaugh’s name: (1) The FBI’s supplemental investigation was always supposed to be limited in time and scope; (2) a summary of all the tips the FBI received was available to all 100 U.S. senators; and (3) we have good reason to believe that none of the supposedly “compelling leads” were actually compelling at all.
Let’s take each of these points in order.
First, there was a bipartisan agreement that the supplemental background investigation would be limited to one week and limited to “current” and “credible” allegations — not a fishing expedition.
After Christine Blasey Ford’s Senate testimony — in which she discussed her uncorroborated allegation that when she was 15 years old a 17-year-old Kavanaugh assaulted her at a small gathering of friends — Republican senator Jeff Flake of Arizona and Democratic senator Chris Coons of Delaware agreed to a one-week supplemental FBI investigation of Kavanaugh.
“The compromise that we struck, that we would have something limited by time,” then-senator Flake said in an October 2, 2018, interview. “The scope being limited to current, credible allegations. And we didn’t want to throw something open for allegations to come out like the Rhode Island boat thing that was out and then retracted. Or some of the more outlandish ones out there. We checked with the DOJ and they assured us this was within the timeframe they could do it.”
The “Rhode Island boat thing” Flake mentioned referred to a demonstrably false rape allegation that was quickly retracted. Flake explicitly said at the time that the FBI should not investigate the wildly implausible gang-rape allegations made by a woman named Julie Swetnick — allegations that were promoted by Michael Avenatti (an attorney recently convicted in New York of extortion and standing trial in Los Angeles for fraud) and treated as credible by Senate Democrats. Flake understood “current” and “credible” allegations to be limited to those made by Blasey Ford and a Kavanaugh classmate named Deborah Ramirez, who said Kavanaugh exposed himself at a college party.
Second, the New York Times fails to report that the FBI tip-line information was in fact included in the FBI’s report to Congress. A CNN report from 2018, “FBI report includes tip line information,” states:
The FBI report, according to congressional sources and as well as [sic] sources briefed on the documents, includes not only the interview summaries but also information that came in to the FBI’s tip line.
CNN has reported on a number of individuals from Yale who said they had reached out to the FBI to report information but had not been subsequently contacted by the FBI.
One source says the FBI report is more than 1,000 pages.
Mike Davis, who served as chief counsel for nominations on the Senate Judiciary Committee during the Kavanaugh hearings, tells National Review that there was a summary of all 4,500 tips in the FBI’s report, which was available to all 100 U.S. senators.
“They printed out the entire tip-line summary,” says Davis. “Every senator had full access to read those things if they wanted to.”
Davis makes a crucial point about Senate Democrats now expressing outrage: “If there was anything that caught their attention, they could have flagged it for further investigation.”
“Every whack-job in the world called into that thing. That’s why there were 4,500 [tips],” says Davis. “Grassley’s team went through the entire tip-line. It was nonsense.” Davis worked under then-chairman Chuck Grassley on the committee and now runs the Article 3 Project, a conservative group that focuses on the judiciary.
A Republican senator who reviewed the FBI’s report confirms Davis’s description of the tip-line summary. “There was nothing in there . . . nothing anywhere providing a shred of corroboration” of an existing allegation or a new allegation, the senator tells National Review.
Third, because of subsequent reporting, we have good reason to conclude that the tips that were supposedly most “compelling” or “relevant” were neither compelling nor relevant.
New York Times reporters Kate Kelly and Robin Pogrebin spent nearly a year investigating Kavanaugh for a book they published in September 2019. The only new allegation they reported was patently absurd: The two reporters hyped a new allegation that, while at Yale, Kavanaugh was allegedly standing around naked at a party when Kavanaugh’s “friends” allegedly “pushed his penis into the hand of a female student.” The alleged female victim in this incident had no recollection of it.
As I reported in October 2019:
The New York Times Sunday book review section published an essay by Robin Pogrebin and Kate Kelly, two New York Times reporters and co-authors of a new book about Brett Kavanaugh, in which they claim that a Yale classmate of Kavanaugh’s named Max Stier “saw Mr. Kavanaugh with his pants down at a different drunken dorm party, where friends pushed his penis into the hand of a female student.”
The bombshell headline that “NYT reporters’ book details new sexual assault allegation against Brett Kavanaugh” rocketed around Twitter on the evening of Saturday, September 14. Ronan Farrow, the muckraking journalist who played a crucial role bringing down Harvey Weinstein and other alleged sexual predators, tweeted that two New York Times reporters had “documented another serious claim of misconduct with an eyewitness.” The next day, several Democratic presidential candidates, including Bernie Sanders, Elizabeth Warren, and Kamala Harris, called for Kavanaugh’s impeachment in response to the article.
But anyone with a basic understanding of human anatomy and human behavior should have found the allegation published in the Times absurd on its face. A young Kavanaugh was standing around naked at a party when “friends,” plural, “pushed his penis”? He just stood there without recoiling when his genitals were grabbed and “pushed” into someone else’s hand? If this highly implausible scenario had occurred, wouldn’t both the female student and Kavanaugh have been victims of this alleged assault?
What remained of the very dubious accusation was shredded with a single tweet early in the morning on September 15, when Mollie Hemingway, who had obtained an early copy of the book, wrote that the Times essay failed to report that the alleged victim has no memory of the alleged incident, a fact included in Pogrebin and Kelly’s book. Omitting this crucial fact was one of the worst cases of journalistic malpractice in recent memory, an error the authors pinned in part on their editors. It took the Times until almost midnight Sunday to append an editor’s note informing readers that “the female student declined to be interviewed and friends say that she does not recall the incident.” They provided no indication they had any corroboration besides Stier’s claim that the alleged incident occurred, and they failed to report that Max Stier had done work for President Bill Clinton in the 1990s and that his wife’s judicial nomination died in 2016 because of the Republican-controlled Senate.
There is a fourth and final key point that the New York Times leaves out of its latest report: the fact that the ten interviews the FBI conducted actually helped clear Kavanaugh’s name (to the extent it could be cleared of allegations about something said to have happened decades ago).
Christine Blasey Ford claimed that her best friend from high school, Leland Keyser, was with her at the small gathering where Blasey Ford was allegedly assaulted by Kavanaugh. Keyser publicly said she didn’t recall the party or ever meeting Kavanaugh. But in speaking to the FBI during the supplemental investigation, she went a step further, casting serious doubt on Blasey Ford’s story.
“I don’t have any confidence in [Blasey Ford’s] story,” Keyser said to Kelly and Pogrebin, who interviewed her for their book. The details of the allegation “just didn’t make any sense,” Keyser said.
So, there’s a lot less than meets the eye to the latest New York Times report about the FBI investigation of Kavanaugh and the 4,500 tips it received.
Why focus on the three-year-old confirmation fight now?
Mike Davis says it’s possible Senate Democrats are trying to delegitimize the Supreme Court or intimidate Kavanaugh and other justices. There’s currently a commission studying Court-packing, and this fall the Supreme Court will hear the most important case on abortion in three decades. (The state of Mississippi filed a brief on Thursday afternoon asking the Supreme Court to overturn Roe v. Wade.)
Democrats haven’t exactly kept their efforts to intimidate sitting Supreme Court justices a secret.
When Democrats introduced their Court-packing bill this year, Democratic congressman Hank Johnson of Georgia, a co-sponsor of the bill, said: “The Court needs to know that the people are watching.”
On the day the Supreme Court heard an abortion case in 2020, Chuck Schumer, the top Democrat in the Senate, attended a pro-abortion rights rally outside the Court and threatened Justices Gorsuch and Kavanaugh by name. “I want to tell you, Gorsuch. I want to tell you, Kavanaugh. You have released the whirlwind, and you will pay the price!” Schumer shouted. “You won’t know what hit you if you go forward with these awful decisions.”
As the Court prepares to hear a far more important case on abortion this fall, expect to see more stories like the one published this week in the New York Times.