Al­le­ga­tion roils Se­nate bat­tle over Ka­vanaugh

The Washington Post - - FRONT PAGE - BY SE­UNG MIN KIM AND ELISE VIEBECK

The bit­ter Se­nate fight to con­firm Brett M. Ka­vanaugh to the Supreme Court plunged into deeper chaos Thurs­day as a top Demo­crat dis­closed she had re­ferred “in­for­ma­tion” about Pres­i­dent Trump’s nom­i­nee to the FBI.

Sen. Dianne Fe­in­stein (D-Calif.) is­sued a brief, cryp­tic state­ment about the re­fer­ral, but the ab­sence of any de­tails only raised ques­tions. The in­for­ma­tion came in a let­ter that de­scribes an al­leged episode of sex­ual mis­con­duct in­volv­ing the 53-year-old Ka­vanaugh when he was in high school, ac­cord­ing to a per­son fa­mil­iar with the mat­ter.

The White House de­cried the move as a des­per­ate, last-minute cam­paign to tear down a qual­i­fied nom­i­nee, and the FBI does not plan on in­ves­ti­gat­ing the mat­ter, which erupted pub­licly as Democrats com­plained that Ka­vanaugh is un­fit for the high court.

The abrupt dis­clo­sure came as an in­tensely po­lit­i­cal bat­tle over Ka­vanaugh’s con­fir­ma­tion con­tin­ued to es­ca­late, with a hand­ful of mod­er­ate se­na­tors who would de­cide his fate de­lib­er­at­ing on how they would vote on a nom­i­nee who could shift the bal­ance of the court to the right for gen­er­a­tions.

Top Se­nate Repub­li­cans said Ka­vanaugh’s nom­i­na­tion re­mains on track, but two swing GOP votes — Sen. Su­san Collins of Maine and Lisa Murkowski of Alaska — have not an­nounced their po­si­tions and face in­tense pres­sure at home to op­pose Ka­vanaugh, in­ject­ing un­cer­tainty into the out­come. Collins said she had lin­ger­ing ques­tions and plans to speak to Ka­vanaugh on Fri­day. In Alaska, the state’s largest Na­tive Amer­i­can or­ga­ni­za­tion urged Murkowski to re­ject the nom­i­nee.

Democrats have thrown in­creas­ingly charged ques­tions at Ka­vanaugh as they face a fu­ri­ous lib­eral base push­ing se­na­tors to do ev­ery­thing within their power to sink his nom­i­na­tion — some­times with­out of­fer­ing pub­lic ev­i­dence of their claims.

Sen. Shel­don White­house

(D-R.I.) asked Ka­vanaugh sev­eral ques­tions in writ­ing about gam­bling, in­clud­ing whether the judge had ever re­ported a gam­bling loss to the In­ter­nal Rev­enue Ser­vice and whether Ka­vanaugh had sought treat­ment for a gam­bling ad­dic­tion. The nom­i­nee said no to both ques­tions.

“All of our ques­tions were pred­i­cated on doc­u­ments pro­duced to the com­mit­tee, in­for­ma­tion re­layed by law en­force­ment, or me­dia in­ves­ti­ga­tions on the sub­ject of which we be­came aware,” White­house said.

But the drama on Thurs­day cen­tered on the mys­te­ri­ous let­ter.

Democrats on the com­mit­tee first learned about the let­ter’s con­tents at a meet­ing called at the last minute on Wed­nes­day night. The let­ter had been re­layed to Fe­in­stein, the top Demo­crat on the Ju­di­ciary Com­mit­tee, by Rep. Anna G. Eshoo (D-Calif.), two peo­ple fa­mil­iar with the mat­ter said.

“That in­di­vid­ual strongly re­quested con­fi­den­tial­ity, de­clined to come for­ward or press the mat­ter fur­ther, and I have hon­ored that de­ci­sion,” Fe­in­stein said in a state­ment. “I have, how­ever, re­ferred the mat­ter to fed­eral in­ves­tiga­tive au­thor­i­ties.”

Emma Crisci, a spokes­woman for Eshoo, said she could not com­ment be­cause of a con­fi­den­tial­ity pol­icy in­volv­ing con­stituent case­work.

Other Demo­cratic se­na­tors on the com­mit­tee — who have, for weeks, been fu­ri­ous with the GOP over how it has pro­ceeded with Ka­vanaugh’s nom­i­na­tion — de­clined to com­ment on the let­ter’s con­tents and the un­cer­tainty that it caused. But pri­vately, some Democrats had asked Fe­in­stein about the let­ter’s sub­stance as chat­ter about its ex­is­tence emerged within the past week or so, prompt­ing the last-minute meet­ing just off the Se­nate cham­ber.

The White House im­me­di­ately pushed back on the devel­op­ment as a “smear” at­tempt to de­rail Ka­vanaugh’s con­fir­ma­tion, which Se­nate Repub­li­cans plan to com­plete be­fore Oct. 1, the first day of the court’s fall term. The Se­nate Ju­di­ciary Com­mit­tee de­cided Thurs­day to vote on the nom­i­na­tion Sept. 20.

“Through­out his con­fir­ma­tion process, Judge Ka­vanaugh has had 65 meet­ings with se­na­tors — in­clud­ing with Se­na­tor Fe­in­stein — sat through over 30 hours of tes­ti­mony, ad­dressed over 2,000 ques­tions in a pub­lic set­ting and ad­di­tional ques­tions in a con­fi­den­tial ses­sion,” White House spokes­woman Kerri Ku­pec said. “Not un­til the eve of his con­fir­ma­tion has Sen. Fe­in­stein or any­one raised the specter of new ‘ in­for­ma­tion’ about him.”

Ku­pec noted that the FBI has “thor­oughly and re­peat­edly vet­ted” Ka­vanaugh through his 25-year ca­reer in pub­lic ser­vice, which in­cludes work in the Of­fice of In­de­pen­dent Counsel un­der Ken­neth Starr, the Ge­orge W. Bush White House, and his cur­rent po­si­tion on the U.S. Court of Ap­peals for the D.C. Cir­cuit.

The spokes­woman also ac­cused Se­nate Mi­nor­ity Leader Charles E. Schumer (D-N.Y.) of mas­ter­mind­ing the lat­est de­vel­op­ments sur­round­ing the let­ter. But a Schumer aide said the se­na­tor has not had ac­cess to the let­ter.

The White House did not re­turn a re­quest for com­ment specif­i­cally on the sex­ual mis­con­duct al­le­ga­tion.

Sev­eral of­fi­cials con­firmed that the let­ter was re­ferred to the FBI. But the bureau does not plan to launch a crim­i­nal in­ves­ti­ga­tion, ac­cord­ing to a per­son fa­mil­iar with the mat­ter — a probe that would nor­mally be han­dled by lo­cal au­thor­i­ties if it were within the statute of lim­i­ta­tions.

In­stead, the FBI passed the ma­te­rial to the White House as an up­date to Ka­vanaugh's back­ground check, which al­ready has been com­pleted, the per­son said. The move is sim­i­lar to what the bureau did when al­le­ga­tions were lev­eled against for­mer White House aide Rob Porter, who re­signed ear­lier this year af­ter the emer­gence of do­mes­tic abuse ac­cu­sa­tions from two for­mer wives.

Once the White House re­ceived the ma­te­rial from the FBI, which it did early Thurs­day af­ter­noon, it sent the in­for­ma­tion to the Se­nate Ju­di­ciary Com­mit­tee, ac­cord­ing to an ad­min­is­tra­tion of­fi­cial.

“Upon re­ceipt of the in­for­ma­tion on the night of Sept. 12, we in­cluded it as part of Judge Ka­vanaugh’s back­ground file, as per the stan­dard process,” an FBI spokesman said. The Jus­tice Depart­ment de­clined to com­ment.

The al­le­ga­tion of sex­ual mis­con­duct in the let­ter was first re­ported by the New York Times. The ex­is­tence of the let­ter was first re­ported by the news web­site the In­ter­cept. Se­nate Ju­di­ciary Com­mit­tee Chair­man Charles E. Grass­ley (R-Iowa) said Thurs­day morn­ing that he had not seen the let­ter, so he could not com­ment on its con­tents.

The con­tro­versy arose in the fi­nal stages of Ka­vanaugh’s con­fir­ma­tion fight, as Democrats have sought to de­lay the process.

Se­nate Ma­jor­ity Leader Mitch McCon­nell (R-Ky.) is in­tent on set­ting up votes in the full Se­nate for the last week of Septem­ber. Fe­in­stein’s dis­clo­sure did noth­ing to change the time­line, as a spokesman for Grass­ley con­firmed that the com­mit­tee vote would pro­ceed as sched­uled.

In a cham­ber where Repub­li­cans hold a 51-to-49 ma­jor­ity, Ka­vanaugh will be con­firmed as long as he loses no more than one GOP vote. While Collins and Murkowski haven’t an­nounced their de­ci­sions, they have shown no signs pub­licly that they are strug­gling to get to a “yes” on his con­fir­ma­tion.

When asked whether she wanted to see the let­ter that be­gan the swirl of con­tro­versy on Thurs­day, Collins de­clined to re­spond, say­ing she would not make any more pub­lic com­ments un­til she was ready to an­nounce her po­si­tion.

But her of­fice has faced a firestorm of calls from Ka­vanaugh op­po­nents, with the protests some­times com­ing in a pro­fane and vul­gar man­ner that has been de­nounced by Repub­li­can se­na­tors and some Democrats. On Thurs­day, a three-foot-long card­board cutout of male gen­i­talia, ac­com­pa­nied by a pro­fan­ity, was sent to Collins’s Wash­ing­ton of­fice, ac­cord­ing to her staff.

Collins had al­ready been the tar­get of a crowd­fund­ing cam­paign that topped $1 mil­lion from anti-Ka­vanaugh ac­tivists, who pledged to do­nate that money to a Collins chal­lenger dur­ing her re­elec­tion bid in 2020 if she voted to con­firm him. A spokes­woman for Collins called it an at­tempt at ex­tor­tion.

Mean­while, in a clear at­tempt to in­flu­ence Murkowski, the in­flu­en­tial Alaska Fed­er­a­tion of Na­tives said Ka­vanaugh’s le­gal views on In­dian rights are “trou­bling” and would be bad for “for Na­tive peo­ples, par­tic­u­larly Alaska Na­tives and Na­tive Hawai­ians.”

Among Democrats, three mod­er­ate se­na­tors who are seen as the most likely to vote in fa­vor of Ka­vanaugh had also yet to make up their minds. Sens. Joe Manchin III ( W.Va.), Joe Don­nelly (Ind.) and Heidi Heitkamp (N.D.) con­tin­ued to de­lib­er­ate Thurs­day, and Manchin was seek­ing a sec­ond sit­down meet­ing with Ka­vanaugh.

Some other Democrats — in­clud­ing Sen. Pa­trick J. Leahy (D-Vt.) — an­nounced their op­po­si­tion to Ka­vanaugh on Thurs­day. Leahy also said he sup­ported how Fe­in­stein had han­dled the dis­clo­sure of the sen­si­tive in­for­ma­tion. “She’s not a per­son to try to smear any­body,” Leahy said. “She’s al­ways done her job, she’s al­ways done it with in­tegrity.”

Se­nate Ma­jor­ity Whip John Cornyn (R-Tex.) dis­missed the con­tro­versy on Twitter.

“Let me get this straight: this is [a] state­ment about [a] se­cret let­ter re­gard­ing a se­cret mat­ter and an uniden­ti­fied per­son. Right,” he tweeted sar­cas­ti­cally. “I will add: the FBI al­ready per­formed and has re­ported on a back­ground in­ves­ti­ga­tion on the nom­i­nee and this has been made avail­able to all Se­na­tors on the Ju­di­ciary Com­mit­tee.”

PHO­TOS BY MELINA MARA/THE WASH­ING­TON POST

ABOVE: Supreme Court nom­i­nee Brett M. Ka­vanaugh dur­ing a con­fir­ma­tion hear­ing last week. LEFT: Sen. Pa­trick J. Leahy, right, said Thurs­day he would op­pose con­fir­ma­tion and de­fended the way Sen. Dianne Fe­in­stein, cen­ter, han­dled a new, anony­mous al­le­ga­tion.

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