On Friday, Sept 28, after a last minute request by Senator Flake, the Senate delayed the final vote on the nomination of Judge Kavanaugh to the U.S. Supreme Court by one week and asked that the FBI reopen its background check of him to investigate claims made by Dr. Christine Blasey Ford and others. Yesterday, President Trump told reporters that there should be no limits on the investigation and the FBI should interview all relevant people, but that it should wrap it up by the end of the week.  In this Q&A, Stanford Law Professor Robert Weisberg discusses the investigation and how the FBI might conduct it.

Several senators have pointed out that Judge Kavanaugh has gone through six FBI background checks and those checks are proof of his good character. Can you explain what those previous background checks might have covered?

Most of us on the faculty have been interviewed for background checks on former or current students for security-sensitive jobs. We are asked fairly generic questions that might not touch on what is being looked at now, although there are usually questions about abuse of drugs/alcohol and possible crimes. In Judge Kavanaugh’s case, the questioning of people was surely more extensive than that, but it still might have been very generic and box-checking, and in any event would have involved non-interview inquiries like poring over financial and travel records. And interviews surely focused on his reputation among people he worked with as a lawyer.

Why didn’t these new allegations of excessive drinking and sexual assault come to light during those FBI checks?

My guess is that (a) questions bearing on what is being investigated now were just not on the protocol list; (b) agents only would have asked these questions if someone had first flagged the issue, and presumably no one did. If you think about the surprising, late, and convoluted ways that allegations have now come forth, you can see that it was extremely unlikely that the background checks would have led the FBI to these people in the first place; (c) it was squeamishness  or a failure of imagination on the part of the agents.

Even if the FBI had inquired about conduct in high school or college, they may have just looked into formal disciplinary records. They surely would not have interviewed hundreds of then-fellow-students. So, how would they have ever found people like Ford or Ramirez? And if they had, it’s hard to say whether those women would have alleged then what they have alleged since.

Finally, the failure to dig up any such allegations may have been self-reinforcing. As Judge Kavanaugh passed each background check, the next time around the FBI would have had less reason to have thought about these matters.

Now that they have come to light, at least two are under investigation. But the allegations go back 30-something years. How might the FBI investigate them today? Is it possible to get at the truth?

I assume they will carefully interview everyone who has already spoken up and slightly expand the list by asking this group for names of others who may also know about the allegations. They will likely also ask for or obtain emails, etc., made to or by those people, although obviously those would be recent discussions of old events, because there was no emailing, etc., at the time! They might assess the credibility of some of these people and probe for corroboration or consistencies.

Who will the FBI report to during this investigation? Will they have free rein to do what they think is best?

I would expect FBI Director Wray to ensure objectivity. Perhaps the report goes to the whole Senate, because the nomination is already out of the committee.

It has been said that the FBI won’t make a judgment on guilt or innocent, but present a report. What should senators look for in that report as they make a decision on Judge Kavanaugh’s nomination?

It depends on what they think would be decisive. If a senator thinks this all turns on whether he committed assault, then the question is, do they find extremely strong new evidence corroborating the allegations? If the question is whether he engaged in disorderly drinking—or whether he lied about that—then if we get more of the claims we’ve heard in the past few days from former fellow students who say he was involved in very disorderly drunken conduct, these could cause some senators to go negative on him. But of course, the only ones who matter are the swing votes, so Murkowski, Collins, and Flake.

Is there a chance that Judge Kavanaugh could be charged with perjury?

Although the FBI says it isn’t looking into perjury, people are still curious about this and could argue for perjury on the basis of what the FBI tells them.

A few problems: under perjury law it’s not enough that a statement is intentionally misleading. It has to be intentionally misleading but it also has to be a flat-out explicit contradiction of the truth. That’s one thing when the statement is about a distinct historical fact, for example the date or place that something happened or where someone was at a specified time, or whether X had ever met Y.  But if an alleged lie is “I never had a drinking problem,” or even “I never had a blackout,” we’re moving into amorphous and more subjective areas.

And even if it’s a lie, it’s not perjury unless it is materially relevant to the proceedings at issue. That’s easier to determine if the proceeding is, say, a criminal trial, so we can ask whether a witness’s lie has any bearing on the elements of a crime (a witness lies about his age out of vanity but it has no relevance to his accuracy as an eyewitness). But what’s the benchmark of relevance in a confirmation hearing? Anything relevant to fitness for office? If so, anything about the nominee’s character? But a nominee’s lie, even if it’s about concrete events (“I never punched anyone in any bar”), is harmful to the proceeding solely because it falsely portrays his character, and that is getting into sketchy territory for perjury. For example, he says: “I did not watch Ford’s testimony.”  How is that material? If the argument is that it shows he’s a liar and that is related to his fitness, then we get into some circular reasoning.

Robert Weisberg is the Edwin E. Huddleson, Jr. Professor of Law and Faculty Co-Director of the Stanford Criminal Justice Center. His scholarship focuses on criminal law, criminal procedure, white collar crime, and sentencing policy.