The nation watched last week as Dr. Christine Blasey Ford and Supreme Court nominee Judge Brett Kavanaugh testified before the Senate Judiciary Committee. Kavanaugh was voted favorably out of committee on Friday, but a full Senate vote will be delayed for a week to allow for an FBI investigation into the multiple sexual assault allegations against him. WGBH News legal anlayst and Northeastern law professor Daniel Medwed explains the investigation and its possible implications. The following transcript has been edited for clarity.
Joe Mathieu: So first and foremost, what should an FBI investigation like this look like? We've considered a lot of different versions the past couple days. How do you even get started?
Daniel Medwed: Well, the key word there is "should." Good investigators — and the FBI are among the best in the business — will go down what's called both the paper trail and the people trail: They'll gather all the relevant documents, scour them and then they'll talk to each and every person who might have information related to the allegations. Now, here we know that the paper trail is unlikely to take them very far because these allegations are so dated — they stem from the 1980s, and that's even in the pre-email era, so there's not much of an electronic trail either. So the focal point by necessity is going to be on the people trail, and ideally they'll start in the center — let's say with Dr. Ford — and then radiate out incrementally, from Dr. Ford, to her husband, to her therapist, to the two people she allegedly confided in, to her friends back at Holton-Arms, her school. And the same thing with Brett Kavanaugh and his inner circle.
Mathieu: So keeping it on the people trail, the White House had first said the investigation would only be limited to a handful of witnesses. There were a lot of people upset about that. Now President Trump says the FBI can interview anyone it deems necessary. So how extensive are we talking?
Medwed: Well, that's a great question. There are a lot of constraints here. The biggest one, of course, is the time limitation. That one week limitation on the FBI is a major restriction on a significant investigation. And last night Majority Leader Mitch McConnell announced, hey, we're going to have a vote on Kavanaugh this week, suggesting it might even be less than the seven days originally designed.
Also, as you indicated before, there's been some confusion about the substantive scope of this investigation. Should it just be limited to up to four witnesses or more? We do know this: the investigators have already gone beyond the Blasey Ford allegations. They've reached out to Deborah Ramirez, another one of the accusers from Brett Kavanaugh's undergrad days at Yale. And I also imagine that the FBI is going to spend a lot of time with the seemingly elusive Mark Judge, Brett Kavanaugh's right-hand man from high school. But beyond that, we don't really know. Will they interview that third identified accuser, Judy Swetnick, or not?
Mathieu: We're talking with WGBH News legal analyst Daniel Medwed. You're a lawyer, you work in court, but this is not under oath. I just wonder when the FBI interviews these people, how do they ensure they're telling the truth?
Medwed: Well that's a great question. There are a couple of mechanisms. First, the FBI, they're very skilled in the art of getting information. They know when to ask open-ended questions to get people talking, then to pivot to close-ended questions, yes or no responses, to tighten the noose around particular facts. They know when to deploy what are called maximization-minimization techniques — that's a fancy phrase for bad cop, good cop. They're really good at this. Second, and maybe more notably, there's a federal statute — it’s Title 18 of the U.S. Code Section 1001, that makes it a crime, a felony, to lie to a federal agent. And that felony is punishable by up to five years in prison. Now a lot of high-profile people have been convicted under this law: Martha Stewart, Bernie Madoff, Scooter Libby from the Bush White House and more recently within Trump's own orbit, you've got Michael Flynn, Rick Gates and George Papadopoulos.
Mathieu: Wow, that's quite a list. I'm going to put you on the spot in our last minute here. With everything you know, with everything we have talked about, what do you expect this FBI report will look like?
Medwed: Oh gosh, I don't really know. But I do know this: it will be devoid of conclusions or inferences from these findings.
Mathieu: So that is true, when the senators say that?
Medwed: It is true. I think what the FBI will do, is they're just going to list all of the facts that they've read about from the documents, all of the statements that the interviewees have made, and leave it up to the Senate to, sort of, reach inferences and conclusions from it. Let's keep in mind, this is a high-profile background check — that's really all it is — that’s designed to help the Senate make an informed choice about whether Kavanaugh deserves to be elevated. Now, whether the Senate will actually do that, let's leave that to the political prognosticators.
