Criminal Referrals Against Kavanaugh Accusers Remain Unaddressed

People walk by the front of the New York Times building in New York on Sept. 6, 2018. (Angela Weiss/AFP/Getty Images)

WASHINGTON–Since being nominated for the Supreme Court, Justice Brett Kavanaugh has been dogged by unproven allegations, most recently in the New York Times story “Brett Kavanaugh Fit in With the Privileged Kids. She Did Not.”

The New York Times story claims that Kavanaugh exposed himself before a female student during a party at Yale. The background of the story is one of failure to report information that exculpated Kavanaugh. The background of the allegations formerly made against Kavanaugh is of Senate and FBI investigations that exonerated him.

These investigations led to four criminal referrals for those making false claims, and these have not been acted upon, according to materials prepared for a former Senate Judiciary Committee staff member who worked directly on the Kavanaugh hearing.

The New York Times has already acknowledged in a correction that the article, which CNN labeled “botched” and a Washington Post opinion piece called “a monument to hearsay and a travesty of journalistic ethics,” failed to include a detail from authors Robin Pogrebin and Kate Kelly’s book from which the story was drawn “that the female student declined to be interviewed and friends say that she does not recall the incident.”

Pogrebin and Kelly’s article also failed to disclose that Max Stier, mentioned as a partially corroborating source, “defended Bill Clinton for exposing himself” in opposition to Kavanaugh himself, when the latter worked for Independent Counsel Kenneth Starr.

Pogrebin and Kelly cite Stier as a corroborating source based only on two officials who have communicated with Mr. Stier, who could corroborate only that Stier had told the story, not that it was true, the congressional materials state.

Moreover, the original New Yorker story about the incident The New York Times attempts to amplify makes clear “no eyewitness could confirm” the main allegation, “no one could confirm that Justice Kavanaugh was even present, and [the accuser herself] could not be certain that he was the one. She was at first hesitant to speak publicly, partly because her memories contained gaps because she had been drinking at the time of the alleged incident,” according to the congressional materials.

Furthermore, staff attorneys for then-Senate Judiciary Committee Chairman Charles Grassley (R-Iowa) contacted the accuser’s counsel seven times seeking evidence to support the claims made in the New Yorker article, yet the accuser produced nothing in response, and her counsel refused the committee’s request for an interview, the congressional materials report.

Grassley’s staff interviewed five witnesses with relevant information and investigated the public statements of three other individuals and found they had no knowledge of the alleged event, according to the congressional materials.

The FBI said it decided to reach out to 11 people to try to corroborate the various allegations against Kavanaugh, the congressional materials say. The bureau ultimately interviewed ten people, according to its summary of the investigation. The bureau also interviewed the main accuser featured by The New York Times and two alleged eyewitnesses to the incident, as well as a “close friend” of the accuser from college. The resulting investigation report confirmed what the Senate Judiciary Committee concluded after its investigation: “There is no corroboration of the allegations,” including those of Dr. Christine Blasey-Ford, who claimed Kavanaugh sexually assaulted her when both were in high school, the congressional materials say.

During her testimony, Blasey-Ford cited Leland Keyser, a “lifelong friend,” as one of four people who could corroborate her claim against Kavanaugh. Yet at the time Keyser’s attorney said only, “Simply put, Ms. Keyser does not know Mr. Kavanaugh and she has no recollection of ever being at a party or gathering where he was present, with, or without, Dr. Ford.”

Now, Pogrebin and Kelly acknowledge in their book “The Education of Brett Kavanaugh: An Investigation” that Keyser related to them, “I don’t have any confidence in the story,” even though Keyser told them, “I was told behind the scenes that certain things could be spread about me if I didn’t comply.”

The authors’ New York Times article does not contain any of Keyser’s exculpatory statements, even though the article calls the charges it does contain “far less damaging to Mr. Kavanaugh’s reputation than those of Blasey-Ford.”

“The Judiciary Committee never received any evidence that would corroborate the claims made by” any of Kavanaugh’s accusers, the congressional materials said.

In response to the New York Times piece, President Donald Trump recommended that Justice Kavanaugh “should start suing people for libel.”

Criminal Referrals

According to the congressional materials, four criminal referrals for similar charges that proved spurious have not been acted upon.

The first criminal referral took place after an individual claimed a close acquaintance was sexually assaulted by two heavily inebriated men he referred to at the time as “Brett and Mark,” who he claimed he recognized as Kavanaugh. Soon thereafter, however, the individual addressed a tweet to “everyone who is going crazy about what I had said I have recanted because I have made a mistake and apologize for such mistake.”

Within days, Grassley referred the individual to the Department of Justice and FBI for potential criminal prosecution, writing, “Such acts are not only unfair; they are potentially illegal.” Specifically, he said, “It is illegal to make materially false, fictitious, or fraudulent statements to congressional investigators. It is illegal to obstruct Committee investigation.”

“When individuals provide fabricated allegations to the Committee, diverting Committee resources during time-sensitive investigations, it materially impedes our work,” Grassley concluded.

The second criminal referral took place after Julie Swetnick, working with now-disgraced attorney Michael Avenatti, claimed to have witnessed Brett Kavanaugh and others to cause girls to become inebriated and disoriented so they could be “gang-raped.” According to Grassley, “it has become apparent that the statements Mr. Avenatti and Ms. Swetnick submitted to the Committee likely contained materially false claims.”

The third criminal referral, again of Mr. Avenatti, came after a Oct. 25 NBC news story in which, Grassley alleged, Swetnick “denied—both before and after the sworn statement was released—the key allegations Mr. Avenatti attributed to her.”

The final criminal referral came after Judy Munro-Leighton claimed in an email to Senate Committee staff she authored an anonymous letter alleging Kavanaugh and a friend raped her.

Presented with the original letter, then-Judge Kavanaugh responded, “The whole thing is ridiculous. Nothing ever—anything like that, nothing ... The whole thing is just a crock, farce, wrong, didn’t happen, not anything close.”

When interviewed by Senate investigators, Munro-Leighton recanted and said she was not, in fact, the author and had never met Kavanaugh. “I was angry and I sent it,” she said.