Four Years Later, Kavanaugh Probe Still Raising Questions

There were only two days left for the FBI's investigation into alleged sexual misconduct by U.S. Supreme Court nominee Brett Kavanaugh, and the office of Sen. Lisa Murkowski, R-Alaska, had received dozens of emails in early October 2018 about the would-be justice.

One caught the eye of Murkowski's deputy chief of staff, Nathan Bergerbest.

It was from Kerry Berchem, an Akin Gump partner who'd attended Yale around the same time as Kavanaugh. Berchem received texts from a friend indicating Kavanaugh had asked her to "go on record" and defend him against an accusation from former classmate Deborah Ramirez, who said he'd thrust his penis in her face at a Yale dormitory party. Reporters from The New Yorker were digging into the allegation, which wasn't yet public.

Now Berchem thought the texts could serve as evidence that Kavanaugh lied when he told the Senate Judiciary Committee he hadn't discussed the allegation with anyone before The New Yorker's article ran.

"I came forward because I thought it was more than possible he had perjured himself," Berchem told Law360. "As a lawyer, I felt it was my duty and obligation to provide the information and related questions I had, which I firmly believe should have been reviewed, considered and explored by the FBI."

Berchem tried multiple times to relay the text messages to an FBI agent whose email she'd tracked down. But he kept pushing her to send a tip through the FBI's public access line, or PAL, even after she told him she'd submitted online tips twice, called a local field office, and had yet to hear anything back. She then wrote to several Senate offices about her experience.

The FBI's radio silence concerned Bergerbest. He emailed Jill Tyson, the FBI's acting deputy director, telling her that Berchem "sought to be interviewed without success" and "believe[d] that she was walked into a dead end."

"The full Senate, and not just the committee, is relying on the rigor and accuracy of information in the FBI's background investigation of the nominee," he wrote to Tyson. "I would appreciate a note on how [Berchem's] concerns are being addressed."

Tyson's reply said Berchem should submit a tip to the PAL — the same "dead end" Bergerbest was concerned about. She then forwarded his email to colleagues, saying she'd "defer as to how the agents handle this."

The correspondence was among thousands of pages of FBI documents made available last year.

Murkowski didn't vote for Kavanaugh's confirmation. Her office did not respond to requests for comment, nor did Bergerbest, who has since retired from federal service. The FBI declined to answer Law360's questions.

Berchem continued to reach out to the FBI. Although she sent four online tips and made three calls to the PAL, she never heard back.

"To say that I was and remain disappointed by the so-called FBI supplemental investigation would be a gross understatement," she told Law360.

Reports of the FBI shuttling credible witnesses to a tip line it seemed to ignore drew outrage even as the bureau finished its inquiry into Kavanaugh's past in the fall of 2018. Four years later, the investigation remains shrouded in secrecy.

A Law360 review of the more than 4,500 Kavanaugh-related PAL tips made available through the Freedom of Information Act revealed that hundreds of pages had been deleted, and at least 1,000 tips were completely redacted.

The time stamps on redacted memos seem to suggest some tips may have piled up for days, sometimes weeks, without internal review.

It's unclear if those delays would flout FBI policy because the bureau remains mum on PAL procedures and on the basic parameters of the Kavanaugh investigation. Questions linger about what resources were allocated to the probe, how long tips sat without being reviewed by FBI staff, and whether agents could expand its scope in light of credible allegations.

Even U.S. senators have struggled to get answers, although Democrats on the Judiciary Committee continued to press FBI Director Christopher Wray as recently as last month, when Sen. Sheldon Whitehouse, D-R.I., got Wray to admit that the FBI did not investigate any Kavanaugh-related PAL tips.

"An organization should not be able to stall and delay its way out of accountability for bad behavior," Whitehouse told Law360.

He worries that then-President Donald Trump had so much control over the supplemental background investigation, FBI agents either were not permitted or did not bother to follow up on credible tips.

This could have implications for future investigations into potential judges, justices and other nominees. Senators depended on the FBI for an independent investigation, Whitehouse said, and didn't suspect that the bureau flouted its investigative practices to defer to the president.

"[That] would color how we would look at all supplemental background investigations in the future, because they would not have the imprimatur of FBI integrity and FBI policy," he said. "They would instead be the political acts of the nominating agency."

Weeding Through It

Kavanaugh had already been vetted in six FBI background investigations for various posts by September 2018 when Christine Blasey Ford publicly alleged he'd attempted to rape her while they were teenagers living in suburban Maryland.

Then more allegations surfaced, some more credible than others. Kavanaugh was accused of joining in the gang rape of inebriated girls, drunkenly shoving a girlfriend against a wall, raping a woman on a boat in Rhode Island, and forcing a woman to perform oral sex on him. Ramirez's indecent exposure story made news a week after Ford became a household name.

Kavanaugh denied all these allegations, and he and Ford testified in a lengthy Judiciary Committee hearing on Sept. 27, 2018. The next day, Trump announced he'd asked the FBI to conduct a six-day supplemental background investigation into his nominee.


At some point in September, the FBI set up a PAL devoted to Kavanaugh — a first for any nominee awaiting Senate confirmation. It soon received more than 4,500 tips.

Most weren't helpful. They included partisan rants and the theories of wannabe detectives. Some reported that Ford was a CIA operative or had hypnotized herself to create a false memory. Amateur body language readers scrutinized Kavanaugh's fidgeting and water consumption during the hearing. One woman called repeatedly to claim she was in the room when Kavanaugh assaulted Ford, that she'd clerked with him for former Justice Anthony Kennedy, and that Sen. Lindsey Graham, R-S.C., had once tried to bite her face.

Sifting through 4,500 tips within a week "would have been insane," according to Patrick Murphy, who, during his 26-year tenure at the FBI, worked on the background investigation for Justice Kennedy's nomination.

"Probably 75% [of those tips] may be unfounded — anything ranging from lack of credibility to people out of touch with reality," the former agent said. "But then you've got to weed through it, to say, 'OK, which are the relevant ones?' and then you're going to try to track down where these people are at, and maybe do a little bit of vetting to decide, 'OK, is this person worth talking to?'"

Buried amid the PAL noise, there were some possibly relevant tips from people who claimed to have personal knowledge of Kavanaugh's past.

One attorney reported his client, a former Yale classmate of Kavanaugh's, had seen him drunkenly "engage in conduct with a female student that was similar to the conduct since reported by Deborah Ramirez." Another lawyer wrote about two people who'd known Ford in high school and were "aware of some very serious problems that are pertinent to her claims." Others made allegations about Kavanaugh's behavior at a law firm party and as a member of Yale's Truth and Courage club.

The record also suggests that some tipsters with plausible stories struggled to be heard.

Joseph Hennessey tried to reach the FBI multiple times. He called and submitted an online tip on Sept. 30, and, when he didn't hear back, submitted another that included a declaration explaining he'd been friends with Kavanaugh's Georgetown Prep classmates, and that on multiple occasions at high school parties, Kavanaugh was "stupid drunk, aggressive and confrontational" when he realized Hennessey didn't go to Prep, demanding he leave and needing to be physically restrained.

Another source, Kathleen Charlton, a former Yale classmate, wrote that Kavanaugh "tried to influence witnesses before the alleged assault accounts were published and possibly even before journalists knew about them," adding that a mutual friend had told her Kavanaugh had called him to ask that he share "no bad" with reporters looking into Ramirez's claim — an allegation in line with Berchem's.

Charlton remembers watching Sen. Jeff Flake, R-Ariz., saying on "60 Minutes" midway through the supplemental investigation that Kavanaugh's nomination would end if he was found to have told a lie to the committee.

"I was standing in my living room with my husband, going, 'I have it!'" she told Law360.

She said she "didn't have confidence that calling a tip line was going to go anywhere," and tried other methods as well, using a D.C. lawyer with FBI connections to try to relay her information, and reaching out to her senator, Cory Booker, D-N.J., whose staff put her in touch with the special agent in charge of the New Jersey FBI field office. The agent said someone "from the appropriate FBI entity" would call Charlton soon, and she said she "literally did not move for 24 hours," knowing that the investigation was on a tight schedule. But she never heard back. She also submitted a tip and a timeline of events through the FBI's online PAL portal. Her tip was so long and detailed, she had to submit it in three parts. No one from the FBI ever followed up with her.

Then there was Chad Ludington, who wrote to the FBI that he'd "become deeply troubled by what has been a blatant mischaracterization by Brett himself of his drinking at Yale."

Ludington said he drank often with Kavanaugh and had witnessed him slurring, staggering and "belligerent and aggressive." He worried Kavanaugh had perjured himself when he testified at the Judiciary Committee hearing that he'd never drank to excess. And he offered proof — the police were once called after Kavanaugh started a bar fight. He suspected there was a police report.

Law360 reached out to Kavanaugh's chambers through the Supreme Court's press office for comment, but its requests went unanswered.

Records indicate Ludington went to the Raleigh, North Carolina, field office hoping to speak with an agent, but was referred to the PAL. An agent forwarded his statement to the PAL and Ludington himself wrote an online tip on Oct. 1. Ludington sent his tip again the next day, saying he was "waiting to hear back." On Oct. 3, the day before the FBI's report was due, he sent a third tip, noting, "I have still not heard back from anyone at the FBI."

"I don't want to say that they guaranteed they'd get back to me, but I was led to believe they'd be getting back to me very shortly. So I kept on filling it out," he told Law360. "And then I realized that either they were not interested in my tip, or it was going to the tip equivalent of a dead letter office."

'Sooner Is Better'

While the tips from Ludington and Hennessey were processed the same day they came in, a Law360 review of PAL records found that others may have languished.

Internal memos written about each tip included a date at the top of the document, as well as a narrative indicating the date and time the PAL received the information. Reports for dozens of tips showed a lag time of more than five days between these two dates.

Four current and former federal law enforcement officials, some of whom spoke on background, told Law360 that the dates at the top of each memo likely indicated when the document was prepared for review. While none of those agents were familiar with this particular form, they said it was clear that the date/time received was when the tip came in, and that based on their experience, the date at the top of the document would have indicated when it was prepared.


Anatomy of an FBI Memo
FBI memos about tips that came in through the public access line raise questions about date discrepancies and the reason for some redactions. Hover over highlights for details.

This refers to the fact that the call or online tip was handled by someone at FBI headquarters, former agents say.This is likely the date the memo was created, according to several former FBI agents. The text on the right side of this document refers to the exemption under the Freedom of Information Act cited to justify a redaction. Both b6 and b7(c) protect the privacy interests of individuals — for example, identifying information about the tipster or the FBI staffer who drafted the report. This refers to the date the tip was called in or sent through the FBI's website. The difference between this date and the one at the top of this document may suggest that the tip sat for two weeks without being reported out, former FBI agents say. The tip itself has been entirely redacted.Exemption b7(e) under the FOIA covers disclosures that would reveal "techniques and procedures for law enforcement investigations or prosecutions."


If their supposition is correct, it would mean that on Oct. 3, the day before the investigation wrapped, FBI staff were still reading through and writing initial reports on tips that were days and sometimes weeks old. If any of those tips were plausible, it wouldn't give the bureau much time to investigate before sending its report to senators, who'd decided to confirm Kavanaugh by Oct. 5, and held their final vote on the 6th.

Michael Tabman, who worked as an FBI agent for 24 years before leaving the bureau in 2007, said that generally, similar investigative memos had to be written within five days.

"I don't know if that's changed since I retired, but I doubt it. If anything, it would have gotten stricter," he said. "It makes total sense that you have a short timeframe to write up your investigation."

The FBI declined to answer questions about the dates on the PAL records, or about policies for processing PAL tips. Whitehouse's office also didn't have information on the formatting of such documents.

The bureau's own training documents for PAL workers advise "sooner is better than later." But those training documents are redacted as to details of the job of tip line workers.

Former agents wondered whether, amid the deluge of tips, a week was a realistic time frame to process and chase down relevant information, and whether the Trump administration's limits on the inquiry constrained agents.

Although the six-day time frame was "even more compressed than what you're typically dealing with," Murphy said, it's not unusual for background investigations to have deadlines set by the White House. But otherwise, the FBI usually takes the reins.

"Typically, if it's an FBI investigation, the FBI is calling the shots," he said. "This was a different duck."

"I've done presidential appointment investigations," Tabman said. "Never have I heard of a situation where information is developed and you weren't allowed to pursue it, and you were not given extra time if you absolutely needed it."

In the reports that seem to have long lag times, the tips have been entirely redacted, making it impossible to assess their value.

The reason for these redactions, an exemption to the Freedom of Information Act for "techniques and procedures of law enforcement," applies to how agents investigate leads and to internal procedures that may not be well known to the public, according to Matthew Leish, a media law attorney at Miller Korzenik Sommers Rayman LLP.

It's possible the FBI could assert that exemption to protect information about how they investigated a tip as well as the decision not to investigate one, Leish said, but "it's surprising that they seem to have asserted the exemption as to the substance of the tips themselves."

"If the exemption is being cited properly, that would mean the language was redacted because it reflected something about investigative techniques and procedures that they used to follow up on the tip," he said. "But without knowing exactly what was redacted, we can't tell if the exemption was properly cited or not."


Same Tip, Different Redactions
There were some duplicate documents within the thousands of files provided by the FBI in response to a FOIA for Kavanaugh-related PAL tips. While all the files were redacted, they weren't always redacted equally, illustrating how subjective such erasures can be. Here is how the same tip, sent through the FBI's web portal, was redacted differently in two different files. Use the slider to compare.




Off the Rails

While Justice Kavanaugh has been seated on the high court for nearly four years now, questions about his past haven't gone away. Senate Democrats have tried to learn more about the protocols that guided the supplemental investigation, and the degree to which the Trump administration controlled it.

In 2019, Whitehouse and Sen. Chris Coons, D-Delaware, sent a letter to FBI Director Wray asking why credible witnesses weren't interviewed, whether anyone at the bureau vetted or followed up on tips, and whether the Trump administration was involved in deciding what questions to ask witnesses.

Nearly two years later, Tyson, the FBI assistant director, replied, writing that the FBI was operating as an "investigative service provider" to the Office of White House Counsel when it requested a supplemental investigation into "limited inquiries." She added that the FBI provided "all relevant tips" to the Office of White House Counsel.

This raised still more questions, which seven senators outlined in a subsequent letter. When was the PAL created? What policies guided how it was used? How was it staffed? What was considered a "relevant" tip worthy of sending to the White House? Were any tips investigated? Were any of the 10 witnesses interviewed for the supplemental investigation found through the PAL?

Whitehouse told Law360 that senators had a phone call with an FBI official assigned "the unhappy task of trying to answer these questions." That person indicated "relevant tips" referred to any tip mentioning Kavanaugh, meaning the Office of White House Counsel received not just the credible tips, but all 4,500 of them.

"It was a pure sorting function," the senator said of the FBI's role.

He got clarity on a few more points last month, during a Judiciary Committee hearing where he asked Wray about whether tips were investigated by FBI agents.

Wray confirmed agents "did not further investigate" any Kavanaugh-related tips, and said the FBI took direction from the Trump administration about whom agents could interview.


That may be evidenced in the fact that the FBI flouted "Investigation 101" by not interviewing Kavanaugh or Ford, the two most obvious witnesses, Tabman said.

"I can't believe it's something the FBI did not think of," he said. "It seems like they might have been prohibited from doing it."

Tabman added that the limited scope of the investigation was also unusual. If there was credible evidence that Kavanaugh had perjured himself, that would have ordinarily been fair game.

"I couldn't imagine being a part of an investigation where I'm uncovering information, and it's of significant value, and I'm told to stop," he said. "When an FBI agent gets information, they're supposed to do their job and get more information. That's what we do."

Senate Republicans seem to consider the matter closed.

In November 2018, nearly two months after Kavanaugh was sworn in, the office of Sen. Chuck Grassley, R-Iowa, who at the time was the Judiciary Committee's chair, issued a 414-page report saying committee investigators had interviewed more than 40 people and found "no evidence to substantiate any of the claims of sexual assault." Grassley did not respond to comment requests.

But during an interview in August, Whitehouse remained concerned about the resources devoted to the FBI's investigation and wondered if the bureau anticipated pressure from the administration to keep the investigation's scope limited and supply it with scant resources.

"I think there would have been some unpleasant calls from the Trump White House over to the FBI if somebody [at the bureau] had announced they were detailing hundreds of agents to come and help sort through this stuff for a couple of days to make sure it all got done on time," he said.

Many questions about the investigation remain unanswered. Whitehouse still hasn't received documents outlining specific PAL procedures. It remains unclear whether the FBI was able to flag credible tips to see if the administration wanted them pursued. And the resources and staffers allocated to the investigation also remain a mystery.

"Your questions align with my questions," Whitehouse told Law360 in August. "I don't have answers that I can give you."

At last month's hearing, Wray committed to reply by early September to several letters Judiciary Committee members sent the FBI in recent months.

Whitehouse's office confirmed that it had received a response from the FBI by mid-September, but said that "many questions remain." The FBI's reply has not yet been publicly released, and the FBI declined to provide a copy. The office of Sen. John Cornyn, R-Texas, indicated it did not have a copy of the letter. Other senate offices did not respond to Law360's request for a copy of the letter by 5 p.m. on Tuesday.

Whitehouse plans to draft a report detailing the pitfalls of the Kavanaugh investigation, so the Senate can remedy problems with the process.

He hopes the bureau might compile better procedures for handling such investigations in the future and maintaining independence from the executive branch. If the FBI isn't investigating credible tips, he said, then "something has gone off the rails."

"As we continue to have this larger conversation about the legitimacy of this particular Supreme Court, knowing the facts of that political pressure becomes an important aspect of the analysis," he said.

--Editing by Marygrace Anderson.

Correction: An earlier version of this story misstated Nathan Bergerbest's title at Sen. Lisa Murkowski's office and Sen. Grassley's party. The errors have been corrected.





For a reprint of this article, please contact reprints@law360.com.

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