FBI in the eye of Senate storm

Public pressure is bearing down on the FBI as agents move to complete an investigation into sexual assault allegations against Judge Brett Kavanaugh, President Trump’s embattled Supreme Court nominee.

Trump has called for a “comprehensive” but swift investigation, imposing a deadline on the FBI that has agents hurriedly interviewing witnesses to get to the bottom of allegations against Kavanaugh in one week.

The White House has instructed the FBI to wrap up its probe by Friday, after which the bureau is expected to send a report to the Senate Judiciary Committee on its findings.

Should the FBI turn up evidence that corroborates the allegations against Kavanaugh or that casts doubt on his testimony, it could derail his nomination. But if the FBI report has the appearance of clearing Kavanaugh, it will pave the way for Republicans to secure key swing votes.

Either way, the investigation’s conclusion will carry massive political implications just more than a month from the November midterm elections.

It’s a task for which the FBI is well-prepared, former agents and experts say, given the bureau’s vast resources and the tight deadlines often faced in completing background investigations.

“The FBI is very accustomed to this type of deadline and type of investigation,” said Steve Gomez, a former FBI special agent in charge in Los Angeles. “They would have contacted every field office to put them all on alert.”

At the same time, it will put the FBI in the political crosshairs once again after a series of high-profile controversies that have tarnished the bureau’s image.

Democrats angry with how the FBI handled its investigation of former Secretary of State Hillary Clinton’s private email server are pressing the White House and Trump to ensure the bureau has as much time as possible to conduct its investigation.

Senate Minority Leader Charles Schumer (D-N.Y.) has requested the FBI brief the full Senate on the investigation at least 24 hours before the procedural vote to move forward with the nomination.

Trump, who has been angry with the FBI over its investigation into Russian interference in the 2016 presidential election, has put his faith in the bureau in this case, saying it should talk to anyone it wants to, provided that’s OK with Senate Republicans.

Senate Majority Leader Mitch McConnell (R-Ky.) said Tuesday that the FBI’s report would be given to all senators, but not released publicly. “That’s the way these reports are always handled,” McConnell said.

Despite McConnell’s statement, there is likely to be immense pressure on the Trump administration and Congress to release details of the FBI’s findings upon the conclusion of the probe, even if doing so would run counter to normal practice.

The FBI usually conducts its work in secret, but its every action in this case is under enormous public scrutiny.

News alerts about individual interviews have become public in the past 48 hours, as have reports that Christine Blasey Ford, the first woman to make public accusations against Kavanaugh, has yet to be interviewed.

Ford’s attorneys took aim at the bureau in a letter sent Tuesday to FBI Director Christopher Wray and general counsel Dana Boente for not taking them up on numerous offers to assist in the investigation.

Republicans have seized on the fact that Ford’s lawyers have ties to Democrats in a broader push to accuse the minority of using Ford’s allegations to stall Kavanaugh’s confirmation.

By Tuesday morning, the bureau had completed its interview of Mark Judge, a former classmate who Ford says was present when Kavanaugh sexually assaulted her at an impromptu gathering she says the three attended in high school. Barbara Van Gelder, Judge’s lawyer, declined to comment on the questions FBI agents asked him.

Experts say agents are likely asking witnesses about the gatherings at which the incidents allegedly occurred and Kavanaugh’s behavior, particularly his drinking habits. FBI agents are also expected to question witnesses on their relationships at the time, in order to track down other potential witnesses or leads.

Corroborating the allegations could prove difficult, given that they date back more than three decades and the encounters allegedly involved the use of alcohol, which could mar a witness’s recollection of the events.

“It’s more about trying to substantively prove or advance the proof of the allegation than anything else,” said Mark Zaid, a Washington-based lawyer and expert in background investigations.

The FBI initiated the investigation on Friday after Senate Republicans agreed to delay a vote on Kavanaugh’s confirmation to allow the bureau to reopen its background investigation. They did so one day after Ford’s dramatic testimony to the Senate Judiciary Committee, and only when it became clear the GOP did not have the votes needed to confirm Kavanaugh.

The nominee faces accusations from Ford as well as two other women, Deborah Ramirez and Julie Swetnick.

The bureau has faced fierce pressure from Democrats for information on the investigation’s scope, following reports over the weekend that the White House had constrained the FBI from interviewing Swetnick, who is represented by Michael Avenatti and whose credibility Trump and Republicans have called into question.

The FBI’s interviews could shed light on Kavanaugh’s drinking behavior in high school and college, potentially bolstering or eroding the credibility of his testimony before the Judiciary Committee last week. Subsequent reports have raised questions about Kavanaugh’s statements; one Yale classmate told CNN that Kavanaugh did not tell the truth about his drinking habits before the committee.

However, it would be up to the White House to direct the FBI to dig deeper into whether Kavanaugh may have perjured himself. On Tuesday, Bloomberg reported that Trump had not authorized the FBI to probe Kavanaugh’s alcohol use or potential perjury.

“That’s going to come from what their instructions are and how much liberty they feel that they have to look into things,” said Zaid.

Public attention on the investigation could outweigh efforts to keep details of the findings under seal. Sen. John Cornyn (Texas), the No. 2 Republican in the upper chamber, said he expects a “public statement” to be issued on the findings, though not the investigative report itself.

“There is this appetite to understand what really happened,” said Gomez, the former FBI agent who is now CEO of security consulting firm B2G Global Strategies. “And, we may not know what really happened at the end of the day.”

“It is inconceivable that the FBI could conduct a thorough investigation of Dr. Ford’s allegations without interviewing her, Judge Kavanaugh, or the witnesses we have identified in our letters to you,” wrote the two attorneys, Michael Bromwich and Debra Katz. They requested an immediate call with FBI leadership or those in charge of the investigation.

The FBI, if they do their job in an unbiased way, would have given the "evidence" of Perjury and Conspiracy to Defraud the United States to a US Attorney to take to the Grand Jury. If they Actually did their JOB, the Report will be attached to a whole bunch of Grand Jury Indictments for EVERY Play76er in this scheme.

18 U.S.C. § 371—Conspiracy to Defraud the United States

https://www.justice.gov/jm/criminal-resource-manual-923-18-usc-371-conspiracy-defraud-us

The operative language is the so-called “defraud clause,” that prohibits conspiracies to defraud the United States. This clause creates a separate offense from the “offense clause” in Section 371. Both offenses require the traditional elements of Section 371 conspiracy, including an illegal agreement, criminal intent, and proof of an overt act.

Although this language is very broad, cases rely heavily on the definition of “defraud” provided by the Supreme Court in two early cases, Hass v. Henkel, 216 U.S. 462 (1910), and Hammerschmidt v. United States, 265 U.S. 182 (1924). In Hass the Court stated:

The statute is broad enough in its terms to include any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of government . . . (A)ny conspiracy which is calculated to obstruct or impair its efficiency and destroy the value of its operation and reports as fair, impartial and reasonably accurate, would be to defraud the United States by depriving it of its lawful right and duty of promulgating or diffusing the information so officially acquired in the way and at the time required by law or departmental regulation.

Hass, 216 U.S. at 479-480. In Hammerschmidt, Chief Justice Taft, defined “defraud” as follows:

To conspire to defraud the United States means primarily to cheat the Government out of property or money, but it also means to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest. It is not necessary that the Government shall be subjected to property or pecuniary loss by the fraud, but only that its legitimate official action and purpose shall be defeated by misrepresentation, chicane or the overreaching of those charged with carrying out the governmental intention.

Hammerschmidt, 265 U.S. at 188.
The general purpose of this part of the statute is to protect governmental functions from frustration and distortion through deceptive practices. Section 371 reaches “any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of Government.” Tanner v. United States, 483 U.S. 107, 128 (1987); see Dennis v. United States, 384 U.S. 855 (1966). The “defraud part of section 371 criminalizes any willful impairment of a legitimate function of government, whether or not the improper acts or objective are criminal under another statute.” United States v. Tuohey, 867 F.2d 534, 537 (9th Cir. 1989).

The word “defraud” in Section 371 not only reaches financial or property loss through use of a scheme or artifice to defraud but also is designed and intended to protect the integrity of the United States and its agencies, programs and policies. United States v. Burgin, 621 F.2d 1352, 1356 (5th Cir.), cert. denied, 449 U.S. 1015 (1980); see United States v. Herron, 825 F.2d 50, 57-58 (5th Cir.); United States v. Winkle, 587 F.2d 705, 708 (5th Cir. 1979), cert. denied, 444 U.S. 827 (1979). Thus, proof that the United States has been defrauded under this statute does not require any showing of monetary or proprietary loss. United States v. Conover, 772 F.2d 765 (11th Cir. 1985), aff’d, sub. nom. Tanner v. United States, 483 U.S. 107 (1987); United States v. Del Toro, 513 F.2d 656 (2d Cir.), cert. denied, 423 U.S. 826 (1975); United States v. Jacobs, 475 F.2d 270 (2d Cir.), cert. denied, 414 U.S. 821 (1973).

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