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  • Hugh Hewitt and Sen. Tom Cotton go to the fever swamps in Kavanaugh nomination postmortem

    Blog ››› ››› TIMOTHY JOHNSON

    Melissa Joskow / Media Matters

    Conservative pundit Hugh Hewitt and Sen. Tom Cotton (R-AR) are pushing a conspiracy theory that professor Christine Blasey Ford’s decision to speak out about then-Supreme Court nominee Brett Kavanaugh was actually orchestrated by Democratic leaders in the Senate. The version of events proposed by Hewitt and Cotton is at odds with reports on how Ford decided to come forward, and it serves to undercut Ford’s bravery.

    Cotton was a guest on the October 9 broadcast of Hewitt’s radio show, The Hugh Hewitt Show. Hewitt prompted the conspiracy theory by asking Cotton if he thought “that this was planned long before it was unveiled? And by that, I mean the leak of Dr. Ford’s letter. I don’t know who did it, but I believe it was part of a campaign that was set up to occur exactly when it did. Do you agree with me?”

    Cotton did agree, and he wove an evidence-free conspiracy theory that as early as July, “the Schumer political operation” -- a reference to Senate Minority Leader Chuck Schumer (D-NY) -- and possibly former U.S. Attorney Preet Bharara were involved in a plan to leak the contents of a letter Ford had sent to Sen. Dianne Feinstein (D-CA). In the letter, Ford gave an account of Kavanaugh sexually assaulting her when they were both in high school.
     

    This conspiratorial timeline is at odds with reality. Ford sent a letter dated July 30 to Feinstein and asked that the California senator keep its contents confidential. The Intercept was the first to report on the letter, writing on September 12 that it “describes an incident involving Kavanaugh and a woman while they were in high school” and that Feinstein was refusing to share its contents with other senators, which “created tension on the committee.” According to Politico, “The reporter behind that [Intercept] story later stated that Feinstein’s staff did not leak the letter.”

    Ford came forward publicly in a September 16 Washington Post article. She said later during her testimony before the Senate Judiciary Committee that the presence of reporters at her home and workplace made her realize her identity would be revealed in any case, so she decided to speak on the record with a reporter at the Post who she said had gained her trust.

    Hewitt has a history of being dishonest while discussing federal judicial nominations, but political talk shows still treat him as a mainstream conservative commentator when they bring him on to talk about the topic. While previously his falsehoods served to provide cover for the GOP to radically change norms around the nomination process, he has now sunk to pushing a conspiracy theory.

    Cotton, for his part, has his own history of underhanded behavior on executive branch nominations. In 2014, Cotton placed a hold on President Barack Obama’s nomination of Cassandra Butts to serve as ambassador to the Bahamas. More than two years after her nomination was announced, Butts, who Cotton acknowledged was not a controversial nominee, died of leukemia at age 50, with Cotton’s hold still in place. Before she died, Butts told The New York Times that she had visited Cotton to ask about the hold and he said he knew she was friends with Obama and the hold was a way to inflict personal pain on the president.

  • This American Life falls for Jeff Flake’s gimmick

    Blog ››› ››› TIMOTHY JOHNSON

    Among U.S. senators, perhaps no one bears more responsibility for Justice Brett Kavanaugh’s confirmation to the Supreme Court than Arizona’s Jeff Flake. The retiring Republican senator has made a cottage industry in recent months out of his willingness to break away from Republican Party orthodoxy surrounding President Donald Trump. But he does so in entirely symbolic gestures, nearly always supporting the president's agenda whenever it comes to a vote.

    Flake deployed a variation of this tired schtick on September 28, when he inserted himself into Kavanaugh’s confirmation process by saying he would oppose the vote on the Senate floor unless the FBI was given one week to reopen its background investigation into Kavanaugh.

    While Flake received some plaudits for attaching this caveat to his vote, there is little evidence that he deserved the praise. Of course the FBI’s process was controlled by the Senate’s GOP leadership and the White House -- not Flake -- and their investigation predictably ended up being a sham, extremely limited in both scope and time. What’s worse: The farce of an investigation provided a pretext for senators who were receiving the strongest pressure to vote no -- most notably Sen. Susan Collins (R-ME) and Flake himself -- to push Kavanaugh over the finish line instead.

    This American Life, a weekly public radio program and podcast with an estimated audience of nearly 5 million listeners, published an October 5 episode in which producer Zoe Chace followed and interviewed Flake throughout the confirmation process. Unfortunately, the typically illuminating program fell short in this instance by casting Flake in the softest and most credulous light possible.

    The episode glorified the moment when Flake set in motion the sham FBI investigation, with Chace narrating that Flake’s move preserved “the integrity of the process on the Senate Judiciary Committee.” It also celebrated Flake’s all talk, no action approach as something admirable and sorely needed in today’s politics -- even as Flake himself acknowledged to Chace that in his view “he could never have done something like this if he were still running for office”:

    ZOE CHACE: Preserving the integrity of the process on the Senate Judiciary Committee is a much less romantic story than the one about two survivors of sexual assault changing a senator's mind at the last second. That's what happened, though.

    And finally, that day, the world sees Jeff Flake find a third way. It's something he's been looking for for a long time on a lot of issues -- a way to vote with his Republican colleagues, but stand for certain principles with the Democrats. It's the weirdest niche. But he's a weirdo right now -- a ghost Republican. He doesn't really have a constituency he's speaking for, being anti-Trump but pro- his policies.

    He's retiring from the Senate in a few months. As he says, he could never have done something like this if he were still running for office. There's no value to reaching across the aisle, he says. There's no currency for that anymore. If you do that, you'll lose. So there is not much crossing over to the other side ever, by anybody -- which is maybe why, when you do cross over, this is what happens.

    Chace also adopted Flake’s claim about Christine Blasey Ford’s testimony, saying the senator “found Ford credible and convincing, but he came back, over and over, to the fact that there was nothing corroborating her testimony. No one else could put him in the room that night.”

    Setting aside the credulous repetition of the bizarre GOP talking point that Ford is credible and convincing yet also totally mistaken about who attacked her, the claim about corroboration is misleading at best. Ford’s account of being sexually assaulted by Kavanaugh when they were both in high school was corroborated by conversations Ford had in therapy, with her husband, and with friends and other family members prior to his Supreme Court nomination. And the GOP-controlled FBI investigation ensured that no contemporaneous corroboration would be uncovered, despite compelling evidence -- such as an entry on Kavanaugh’s calendar showing that he was drinking with the same people Ford said were at the party during the time frame in which she said the assault occurred. The FBI investigation was also not permitted to independently verify employment records for key witness Mark Judge, an action Ford herself suggested to the Senate Judiciary Committee would help to narrow the time frame of the alleged assault for a more thorough investigation.

    More broadly, it would be an understatement to characterize the collegial exchanges between Flake and Chace throughout the segment as a softball interview. In one scene, the two met up in New York City, where Flake was speaking at an event the day after he made his FBI investigation gambit. Chace noted that presumably liberal New Yorkers approached the senator and asked him to pose for pictures, which she took for them. Later the reporter and the senator laughed as she asked, “Do you think they know that you're going to vote for Kavanaugh?”

    Chace’s interviews with Flake focused on the optics and political horse race aspects of the Kavanaugh nomination while ignoring real-world impacts. For example, the program didn’t force Flake to explain to women what it means to have yet another justice confirmed to the Supreme Court despite multiple credible allegations of sexual misconduct. Or what it means to have a new Supreme Court justice who is fresh off of delivering a highly unusual and partisan rant before the Senate Judiciary Committee. Or what it means to confirm a nominee who clearly lied under oath numerous times in testimony, something that Flake had told 60 Minutes would be a deal breaker. (Clearly when it was time for him to vote, it wasn’t.)

    Instead, the program focused primarily on what it's like to be the senior senator from Arizona, right now. “Jeff Flake's had a rough few years,” Chace reflected after he called for the FBI investigation but before he announced he was voting to confirm Kavanaugh. “They hate him on the right, and he keeps disappointing the left. It feels good, for once, to be popular.”

    The segment closed with one last interview after Flake had done what most expected and voted for Kavanaugh. Chace asked, “Do you feel better now? You're kind of back among your people. You had kind of a week with the Democrats celebrating you, but you're back among your people.”

    “Do I have people?” Flake responded. “I guess so. I am a man, temporarily, without a party,” he said, laughing.   

  • Conservative media run with flawed FBI investigation and GOP's spin to vindicate Kavanaugh

    Blog ››› ››› ZACHARY PLEAT & TIMOTHY JOHNSON


    Melissa Joskow / Media Matters

    Conservative media are hyping claims from the White House and Senate Judiciary Committee Chairman Sen. Chuck Grassley (R-IA) that the results of an FBI investigation into Supreme Court nominee Brett Kavanaugh do not corroborate multiple women’s accounts that he sexually assaulted them while at the same time attacking anyone who pointed out flaws in the investigation. The FBI investigation was extremely limited in scope and time; did not include interviews of Kavanaugh, Christine Blasey Ford, or approximately 40 others who say they tried to talk to the FBI but couldn’t get through; and did not look into the likelihood that Kavanaugh lied in his Senate testimony. Ford, whose report that Kavanaugh sexually assaulted her in high school is central to determining Kavanaugh’s fitness for the Supreme Court, offered to speak with the FBI, but was rebuffed.

    Trump and Senate Republicans purposely limited the scope of the FBI investigation

    The FBI was initially authorized by the Trump administration and Senate Republicans to interview just four people. From The New York Times:

    Mr. Trump ordered the one-week F.B.I. investigation on Friday after Senator Jeff Flake, Republican of Arizona and a key swing vote, insisted the allegations be examined before he committed to voting to confirm Judge Kavanaugh. But the White House and Senate Republicans gave the F.B.I. a list of only four people to question: Ms. Ramirez and Mark Judge, P.J. Smyth and Leland Keyser, three people Dr. Blasey identified as being at the house where she said Judge Kavanaugh sexually assaulted her when they were teenagers. [The New York Times, 10/1/18]

    Trump later reportedly authorized the FBI to interview more witnesses, but still kept it limited by an arbitrary deadline. From The New York Times:

    The White House authorized the F.B.I. to expand its abbreviated investigation into sexual misconduct allegations against Judge Brett M. Kavanaugh by interviewing anyone it deems necessary as long as the review is finished by the end of the week, according to two people briefed on the matter.

    At an event on Monday celebrating a new trade deal with Canada and Mexico, President Trump said he instructed his White House counsel, Donald F. McGahn II, over the weekend to instruct the F.B.I. to carry out an open investigation, but the president included the caveat that the inquiry should accommodate the desires of Senate Republicans.

    The new directive came after a backlash from Democrats, who criticized the White House for limiting the scope of the bureau’s investigation into Judge Kavanaugh, Mr. Trump’s nominee for the Supreme Court. The F.B.I. has already interviewed the four witnesses it was originally asked to question, and on Monday it reached out to others. [The New York Times, 10/1/18]

    In the end, only 10 witnesses were reportedly interviewed. [Twitter, 10/4/18]

    The investigation finished within only a few days. CNN reported that the White House sent the information gleaned from the investigation to the Senate on the morning of October 4, just days after the investigation was set into motion on September 28. [CNN, 10/4/18]

    The FBI reportedly did not investigate whether Kavanaugh lied to the Senate. New York magazine’s The Cut noted that, according to Sen. Bernie Sanders (I-VT), the FBI did not investigate whether Kavanaugh perjured himself by lying about his high school and college behavior:

    What’s not being investigated is Kavanaugh’s behavior in high school and college, which his classmates say was defined by partying and drinking to excess, at which point the SCOTUS nominee would allegedly become “aggressive” —accounts that drastically differ from those Kavanaugh offered while under oath. Some senators, including Bernie Sanders, have raised concern over the FBI’s apparent disregard for the likelihood that Kavanaugh may have perjured himself.

    “The FBI investigation of Brett Kavanaugh must include a review of his numerous untruthful statements in his previous testimony before Congress,” Sanders tweeted. “Lying to Congress is a federal crime.” He then outlined the numerous examples in which Kavanaugh appears to have lied under oath. [The Cut, 10/3/18]

    Neither Kavanaugh nor Ford were interviewed by the FBI. Kavanaugh repeatedly lied under oath about his behavior in high school and college, but he didn’t have to defend his statements during an FBI interview. Ford sought to speak with the FBI, but was turned down. From Vox:

    Notably, Ford and Kavanaugh are both not yet on the list of people that the FBI has interviewed. A spokesperson for Ford’s attorneys said she had still not been contacted by the FBI as of early Wednesday afternoon.

    “We have received no response from anyone involved in this investigation, and no response to our offer for Dr. Ford to be interviewed,” Ford’s attorneys emphasized in a Tuesday letter to FBI Director Christopher Wray. “This afternoon, we learned of media reports that the FBI does not intend to interview either Dr. Ford or Judge Kavanaugh. We hope that this reporting is inaccurate.”

    There could be a crucial reason for their omission from the investigation. Sources have told Bloomberg that the FBI has not done interviews with Ford or Kavanaugh because the White House hasn’t granted it the authority to conduct them. [Vox, 10/3/18]

    NBC News: “More than 40 people with potential information into the sexual misconduct allegations against Kavanaugh have not been contacted by the FBI.” [NBC News, 10/4/18]

    Legal and criminal experts explain that conditions Trump placed upon the FBI investigation make it a sham

    Chris Kang, former Obama administration deputy counsel: “President Trump and Senate Republicans are turning this much-needed FBI investigation into a sham. … The entire investigation must be made public, so the American people can know which witnesses were interviewed and whether the FBI was able to follow a full range of questioning, including regarding Kavanaugh's candor and credibility.” [The Leadership Conference on Civil and Human Rights, 10/3/18]

    Mike Zubrensky, former deputy assistant attorney general at DOJ Office of Legal Counsel: “The investigation of Kavanaugh’s alleged sexual misconduct is far too serious for a rigged process. … Senator Flake and his Senate colleagues must insist that McConnell respect the confirmation process. And they should demand that the FBI take the time it needs to conduct a thorough and meaningful investigation.” [The Leadership Conference on Civil and Human Rights, 10/3/18]

    Frank Figliuzzi, former FBI assistant director for counterintelligence: “Existing background investigation protocols between the White House and the FBI regarding presidential appointees are flawed and need to be reexamined. ... When the White House can prevent the nation’s premier investigative agency from fully determining the suitability of a Supreme Court nominee we have a problem.” [The Leadership Conference on Civil and Human Rights, 10/3/18]

    Kristine Lucius, former top legal and policy advisor to Sen. Patrick Leahy: “During my over 14 years on the committee, I can’t remember any supplemental investigation in which the FBI did not interview the person who brought forth the allegations, and the nominee himself. … That has been – and must remain – a minimum base line for credibility. No senator should even consider agreeing to proceed with this nomination unless and until the FBI investigation is determined to be thorough and unfettered.” [The Leadership Conference on Civil and Human Rights, 10/3/18]

    Former FBI officials said past background checks were not limited by politics. From The New York Times:

    Several former F.B.I. officials said that they could think of no previous instance when the White House restricted the bureau’s ability to interview potential witnesses during a background check. Chuck Rosenberg, a former F.B.I. chief of staff, said background investigations were frequently reopened, but the bureau decided how to pursue new allegations.

    “The White House normally tells the F.B.I. what issue to examine, but would not tell the F.B.I. how to examine it, or with whom they should speak,” he said. “It’s highly unusual — in fact, as far I know, uniquely so — for the F.B.I. to be directed to speak only to a limited number of designated people.” [The New York Times, 10/1/18]

    Leah Litman, UC Irvine assistant law professor: Restricted FBI investigation makes it “a joke.” From The New Yorker:

    Leah Litman, an assistant professor of law at the University of California, Irvine, said the severe restrictions on the scope of the investigation made it “a joke.” She asked, “What kind of an investigation into an assault that happened under the influence of alcohol doesn’t include investigating the accused’s use of alcohol?” She said, “Usually, the F.B.I. investigators aren’t told who to call and who not to.” She said that Rasor should be interviewed, given her past relationship with Judge. “If Mark Judge is on the ‘approved’ list of witnesses, and they are interviewing him, there is no reason not to interview Rasor, who has testimony that is very relevant to his credibility, and the testimony that he would offer,” she said. [The New Yorker, 9/30/18]

    John Mindermann, former FBI special agent: The restrictions on the probe means it’s not a “real, authentic FBI investigation.” From an October 4 MSNBC interview:

    JOHN MINDERMANN (FORMER FBI SUPERVISORY SPECIAL AGENT): What will be laid out within the limits of the scope and the time that the FBI had to do the investigation will be a portrait of the individual who is being investigated. That's in any background check. The key to a background check is comprehensive running out of all available leads. Apparently in this case, those leads, which were available, were not run out by the FBI because of the limits of time and scope. That is very, very problematic because that limits the overall portrait. It's like taking the brush out of the hand of the painter midway through the portrait session. What will be in there will be, corroborating or not, statements, data, information, times, dates, et cetera, that may or may not corroborate specific allegations that were brought forward.

    HALLIE JACKSON (HOST): We know that the FBI has spoken with nine people that have been interviewed. And we know the names of six of them. We don't know who the other three people are. We know that they originally contacted 10 people. It's not clear to us just yet, based on our sources, why that 10th person was not actually interviewed. You can see who we know and who we don't know there. Dr. Ford's attorney says because she's not on this list -- right, you don't see Christine Blasey Ford on that screen right there -- so her lawyer says this can't be called an investigation. The FBI was not actually seeking the truth. So John, do you agree? Is this a comprehensive investigation or not?

    MINDERMANN: I actually agree that really this does not fall under the definition of a real, authentic FBI investigation. It really is an investigation which is just limited in terms of targeting specific individuals, and for reasons unknown, eliminating a vast majority of people who could have provided corroborating evidence, corroborating information, positive, negative, neutral, whatever. But in an FBI investigation -- and I've done these and I've supervised these -- in these investigations, you encourage your agents to go out, cover all bases, run out all leads, develop that comprehensive look so that whoever is looking at this is well versed and can make that judgment call. This is a judgment call. There's a lot of subjectivity if you don't have factual information. [MSNBC, MSNBC Live with Hallie Jackson, 10/4/18]

    Conservative media figures carry water for the sham investigation -- and treat its spin by GOP officials -- as vindication for Kavanaugh

    Fox News’ Sean Hannity:

    Conservative pundit Erick Erickson:

    Erickson:

    Turning Point USA’s Charlie Kirk:

    Fox News senior political analyst Brit Hume:

    Fox News’ Jeanine Pirro: The FBI didn't need to talk to Ford because "there is nothing else to ask her. There is nothing else that they need to do”:

    Fox & Friends applauded the investigation by claiming "the very narrow scope" avoided "tangents":

    CRTV’s Allie Stuckey: