Jeff Flake’s Capitulation, Democrat Delay Tactics, and the Strategic Addition of Lawyer Bromwich

September 28, 2018 Updated: October 1, 2018

Commentary

During Judge Brett Kavanaugh’s confirmation hearings, Democrats on the Senate Judiciary Committee repeatedly called for an FBI investigation of events surrounding Christine Blasey Ford’s claim that she was sexually assaulted by Judge Kavanaugh when they were both in high school.

Kavanaugh has already been through six FBI background investigations, including one for his nomination to the Supreme Court; the others occurred as Kavanaugh was appointed to previous significant positions.

The role of the FBI with regard to the confirmation process differs from a criminal process. In a criminal investigation, the FBI investigates and offers conclusions and recommendations. In the confirmation process, the FBI gathers information and delivers it to the Senate. No judgment or recommendation is made.

The reason for this is simple. Our Constitution gives sole responsibility for the evaluation of presidential nominees to the Senate. The Senate is part of the legislative branch. The FBI, under the umbrella of the Department of Justice, is part of the executive branch. The FBI has no constitutional authority to render a judgment on a presidential nominee.

So, with this backdrop, why have Senate Democrats been so adamant regarding a new FBI investigation? The reason is obvious. Anything for a delay.

A sudden, but not totally unexpected, reversal of Sen. Jeff Flake (R-Ariz.) has now caused Kavanaugh’s confirmation vote to be delayed while the FBI begins a “supplemental background check.” The Senate Judiciary Committee released a statement on the matter:

“The Senate Judiciary Committee will request that the administration instruct the FBI to conduct a supplemental FBI background investigation with respect to the nomination of Judge Brett Kavanaugh to be an Associate Justice on the Supreme Court.

“The supplemental FBI background investigation would be limited to current credible allegations against the nominee and must be completed no later than one week from today.”

A supplemental background investigation involves the re-opening of a previous background investigation to interview additional people in light of new information.

President Donald Trump responded to the judiciary committee’s request in a statement, saying:

“I’ve ordered the FBI to conduct a supplemental investigation to update Judge Kavanaugh’s file. As the Senate has requested, this update must be limited in scope and completed in less than one week.”

The problem is this: How do you keep an investigation limited to a specified amount of time?

What happens when “new witnesses” and “new information” suddenly surface toward the end of the investigation? What if these last-minute witnesses appear to support “credible allegations”?

From the perspective of the Left, the goal of this process is less about proving or disproving guilt on the part of Kavanaugh. It’s about creating and using anything to delay a confirmation vote until after the November midterms.

The strategy of the Left isn’t without risk. It’s entirely possible that Ford’s allegations will be discredited in the process, but from their perspective, the reopening of the FBI background investigation is about keeping the process of delay alive.

Which brings us to the appointment of Michael Bromwich to Ford’s legal team. Ford testified that her initial two lawyers, Debra Katz and Lisa Banks, were recommended by the office of Sen. Dianne Feinstein (D-Calif.). Exactly how Bromwich came to be added to her legal team isn’t entirely known; Ford has testified that she doesn’t know how her legal team is being compensated.

The addition of Bromwich was noteworthy for a number of reasons. Bromwich currently represents former Deputy FBI Director Andrew McCabe. While representing McCabe, Bromwich worked as senior counsel at Washington law firm Robbins, Russell, Englert, Orseck, Untereiner & Sauber. However, when Bromwich agreed to represent Ford, his partners were so opposed to his decision that they required Bromwich to immediately resign from the firm.

Bromwich’s background is equally notable. From 1994 to 1999, Bromwich was the inspector general for the Department of Justice. In 2010, Obama selected Bromwich to “lead the administration’s efforts to accelerate reforms in the regulation and oversight of offshore oil drilling.”

Bromwich also served as the antitrust compliance monitor for Apple, in connection with its entry into the market for ebooks. Apple, at the time, issued a formal objection complaining of the rate being charged by Bromwich. “Of all known past Apple matters, no lawyer has had a higher rate than Michael Bromwich’s proposed hourly rate of $1,100,” Apple said in court filings.

Bromwich was selected for that position by the U.S. District Court for the Southern District of New York; Preet Bharara was the U.S. district attorney in charge at the time.

On Aug. 22, 2018, Bromwich shared on Twitter an article from Bloomberg, “The Prosecutors Who Have Declared War on the President.” In his tweet, he noted:

“Proud SDNY alum here. So many Angry Republicans, Independents, and Dems in that office. They’re on the march and they can’t be fired.”

He has been repeatedly critical of Trump and the Republican Party.

In addition to other work, Bromwich maintains his own firm, The Bromwich Group, which offers “independent monitoring, crisis management, strategic advisory, public affairs, and law enforcement consulting services.”

A reasonable question to be asked is why Bromwich, who began representing Ford on Sept. 22, would resign from his law firm to represent Ford during the few days of the confirmation hearing.

Bromwich’s background appears uniquely, and presciently, positioned for the new phase of Judge Kavanaugh’s confirmation process. Who better to be representing Ford as the FBI begins a secondary investigation into her allegations regarding Judge Kavanaugh than someone who was part of the Justice Department and the Obama administration.

Consider again his potential connections and political pull: Bromwich is a former inspector general of the DOJ. He personally worked with Bharara at the SDNY. He currently represents McCabe.

Through his representation of McCabe, Bromwich has ties to people within the FBI, particularly those whose loyalties, and interests, align with McCabe’s.

Ford’s legal team, with or without her knowledge, managed to delay testifying for some time. A fear of flying was invoked to avoid attending Senate hearings. Ford would later testify that she had frequently flown, including to Costa Rico and Hawaii.

If the strategy is to delay, then minimizing the FBI’s access to Ford would appear to be a likely strategy.

The FBI can’t compel any of the potential witnesses, including Ford, to submit to interviews, turn over evidence, and so on. All they can do is ask.

Debra Katz, one of Ford’s lawyers, has already issued a statement following the announcement of the reopening of the FBI background investigation:

“A thorough FBI investigation is critical to developing all the relevant facts. Dr. Christine Blasey Ford welcomes this step in the process and appreciates the efforts of Senators Flake, Murkowski, Manchin and Collins—and all the other senators who have supported an FBI investigation—to ensure it is completed before the Senate votes on Judge Kavanaugh’s nomination.

“No artificial limits as to time or scope should be imposed on this investigation.”

Of course not.

Expect Michael Avenatti—the lawyer best known for representing Stormy Daniels—to attempt to jump back into the fray, demanding that his allegations also be taken into account. Media will demand access to any evidence and interviews the FBI does manage to obtain. A media circus will ensue and outcries over a “rushed” investigation will be a daily occurrence.

And in the end, I don’t think a single Democrat senator will change their vote regardless of what the FBI uncovers in its new investigation. Meanwhile, the position of some weaker Republicans, like Flake, Murkowski, and Collins, remains somewhat more tenuous. Impacting those weak Republican positions is precisely part of the goal.

The next seven days are going to be something to behold.

Jeff Carlson is a CFA charterholder. He worked for 20 years as an analyst and portfolio manager in the high-yield bond market. He runs the website TheMarketsWork.com

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.

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