Mission impossible: Find credible witnesses in a political war to alleged 36-year-old incident

At least mission improbable, and probably mission unprovable. The decision to have the FBI reopen their background check to review the “credible allegations” against Brett Kavanaugh — almost certainly limited to the one from Dr. Christine Blasey Ford — might end up providing some political cover for senators to vote to confirm Brett Kavanaugh a week from now. It seems unlikely to accomplish anything else.

“Credible allegations” won’t include the Julie Swetnick claims, which are laughably flawed. It seems doubtful that the background check will include the claims from Deborah Ramirez, who initially declined to submit them under oath (and still apparently hasn’t), and which seem to have been produced with Democratic assistance. The only “credible” claim is the one coming from Ford — and even that one has significant flaws.

For one thing, an FBI “investigation” still has most of the same problems it did when the Ford allegations went public. Despite nearly two weeks of publicity and several hours of testimony yesterday, the allegation has no firm date or place. Second, it allegedly took place 36 years ago. And third, the FBI does not have jurisdiction over the crime alleged. The likeliest jurisdiction would be the Montgomery County police department, but both the police chief and prosecutor there reiterated that they literally have nothing to investigate. No one has filed a complaint, and even if they had, the statute of limitations for the potential crimes alleged would have run out in 1983 under the law at the time of the alleged incident.

Note, however, that both say they’re still willing to look into any complaint filed. So why hasn’t that been done?

That’s not to say that the case hasn’t been moved forward since the Washington Post’s September 16th story. It just hasn’t moved forward in a direction that warrants more investigation. Senate staffers found the other three people named by Ford: Mark Judge, whom she alleged was part of the attack, and Patrick “PJ” Smyth and (Ms.) Leyland Keyser, a “lifelong” friend of Ford’s. All three have submitted testimony (under the same penalty for lying to the FBI) that contradicts Ford — Judge and Keyser explicitly so, Smyth implicitly. Keyser’s testimony that she never attended any party with Kavanaugh is particularly compelling. And so far, not a single credible person has come forward to recall this party or its activities despite almost two solid weeks of hyperbolic media coverage and the hardening of lines in the political battlefield.

And that brings us to the real problem the FBI faces in its renewed “background check.” When Dianne Feinstein had Ford’s letter on July 30th, it was still possible for the FBI to have followed up on these leads before the people they were contacting were tipped off to what it was about. In fact, that remained an option all the way up to September 13th, when someone on the Democrats’ side leaked out that they were sitting on an allegation of a sexual nature about Kavanaugh. The witness pool would have been largely undisturbed, and it would have been easier for FBI investigators to get people to talk on their own volition, and to trust that they didn’t have axes to grind. The window for an effective update on the background check with this allegation closed when the Post slammed it shut on the 16th.

Now, however, we have old acquaintances of both Ford and Kavanaugh lining up to declare their “beliefs” in one or the other. Everyone knows the details and the lack of details, thanks to everyone amplifying them over the past dozen days. We’ve already seen one former Ford classmate “empowering” herself to make a public claim of corrboration, only to hastily withdraw it when people started asking too many questions. Any of the normal advantages that FBI agents have in running down leads — even when leads exist, which they don’t here — are negated.

Where does that leave the FBI? Basically, they’ll only be able to do what the Senate Judiciary staff has already done — talk to the people named by Ford and take down their reactions. Mark Judge has announced through his attorney that he will cooperate, although that actually isn’t news:

But even that isn’t much of a development. All four are on the record and on the legal hook already. If they change their story, they could (theoretically) be subject to prosecution, which is likely what their attorneys advised when they wrote their statements in the first place. There’s no reason to think those stories will change, and since none of them have any recollection of any such incident, they’re highly unlikely to provide any leads to other people for FBI agents to interview. Plus, there isn’t much to add to “I don’t recall any such incident or Brett Kavanaugh acting in that manner,” or “I never attended a party with Brett Kavanaugh.” The most likely outcome are five 302s that say precisely what we already know, but with significantly less legitimacy than had the FBI been given this opportunity prior to the story leaking.

And of course, in the meantime, this leaves Kavanaugh and his family twisting in the wind. The only upside to this is that it will, as Allahpundit noted, permanently dispense with the “muh FBI investigation” talking point and give enough cover to Flake, Collins, and Murkowski to finally do the right thing. It should take considerably less than a week to complete, too, assuming everyone — including Ford — cooperates.