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What The FBI Does And Doesn't Investigate

STEVE INSKEEP, HOST:

The Senate judiciary committee is having a discussion, to say the least, today. Lawmakers venting, expressing their views after yesterday's testimony from Supreme Court nominee Brett Kavanaugh and Christine Blasey Ford, who accused him of sexual assault. Some of the statements that we've heard this morning include one from Charles Grassley, the Republican committee chairman, who said that Kavanaugh's, quote, "alleged behavior is inconsistent with everything we know about him," voicing support for Brett Kavanaugh. Patrick Leahy, Democrat of Vermont, opposing Kavanaugh, saying the judiciary committee is no longer an independent branch of the government, arguing that it is now a weak subsidiary of President Trump's White House. That is just some of the passion we are hearing today. And NPR congressional correspondent Scott Detrow has been listening along with us. Scott, what have you been hearing?

SCOTT DETROW, BYLINE: Well, Democrats - several Democrats on the committee walked out of the committee meeting right now in frustration with this process, which they say is rushed, which they say is not fully investigating these claims. One thing that our colleague Kelsey Snell, who's out in the hallway talking to those Democrats, is reporting that they're saying is there's a lot of focus on something else that we haven't talked about yet. And that is the way that Judge Kavanaugh, during his testimony yesterday, during his back-and-forths with Democrats just presented himself as a partisan fighter. They're saying this is not the temperament of a Supreme Court justice. You can't be incredibly partisan that way and sit on the Supreme Court.

INSKEEP: So that's a criticism of Kavanaugh. Let's listen to a supporter of Kavanaugh if we can bring this in. Lindsey Graham of South Carolina speaking live to his fellow committee members.

(SOUNDBITE OF ARCHIVED RECORDING)

LINDSEY GRAHAM: A minute. Merrick Garland. Scalia dies in the election year, the last year of the term of President Obama.

INSKEEP: Reviewing recent history, which is quite relevant here.

(SOUNDBITE OF ARCHIVED RECORDING)

GRAHAM: The primaries are already underway. Not in a hundred years has anybody been nominated under that circumstance. So I don't think I did anything unfair with Garland. As to Sotomayor and Kagan, I was told on our side, you've got to keep them off the court because they're going to be a pro-choice vote. They hate guns. On and on and on. And I tried to go back to what this...

INSKEEP: Graham here is explaining why he voted for Democrats in the past. Let's hear a bit more.

(SOUNDBITE OF ARCHIVED RECORDING)

GRAHAM: ...For Ginsburg. You'll never convince me that it was because he agreed with her philosophy. I think he saw in her a qualified person. Fritz Hollings voted for Scalia. The same is true. Ninety-six and 97 votes. What's happened? Most of the nominees to the Supreme Court never had a hearing. It was always just assumed that they're qualified, and they're not hacks - that they're going to go forward. Elections do matter. When it comes to President Trump, elections do matter.

INSKEEP: Lindsey Graham of South Carolina. You can hear some weariness in his voice there after yesterday's long day of hearings and today's day of emotion. Scott Detrow, what are you hearing.

DETROW: This is something that Graham has been talking about for a while leading up to that moment during yesterday's hearing where he really exploded and just attacked the Democratic side of the aisle for making the confirmation process, as he put it, hell. Graham is arguing Supreme Court nominations have gotten more and more partisan. He's right. Kavanaugh, if he's confirmed, will be confirmed with 51 or 52 votes at most.

INSKEEP: And the committee will vote today at 1:30, we're told, the vote going ahead despite Democratic calls for an FBI investigation into the assault allegations. Now, earlier today, we spoke with former federal prosecutor Renato Mariotti about what an FBI investigation would mean. Let's listen.

Good morning, sir.

RENATO MARIOTTI: Good morning.

INSKEEP: So there's some difference of opinion, which is reflected there, about what the FBI does. Kavanaugh himself saying, you know, they don't draw any conclusions. What actually would the FBI do if they were asked to investigate this?

MARIOTTI: Well, what they would do is they would interview individuals who would be relevant to this claim - so, for example, Mark Judge, whose name came up a number of times during the hearing yesterday, as well as other witnesses. They would perhaps interview people at Safeway, where he worked, because that was a question that came up at the hearing, as well. They would interview former associates of Judge Kavanaugh and of Dr. Ford. And they would try to gather information that would be relevant to this claim and potentially to other claims that have been made.

INSKEEP: Can I just ask about one thing you mentioned there? Because you said Mark Judge. This is the person who is alleged to have been in the room when Kavanaugh was alleged to be assaulting Christine Blasey Ford. Asked about bringing on Mark Judge, Kavanaugh himself said, hey, he's already given a sworn statement. What more do you want? Would an FBI investigation or questioning of him be more than a sworn statement?

MARIOTTI: Well, certainly. I mean, his statement was literally just a couple of sentences long, you know, written by his attorney. He submitted, since the hearing, another one or two-sentence statement. That's very different than being questioned by a trained law enforcement investigator. And there, obviously, if he lied to the FBI, that would be a crime. So that's certainly very different.

In addition, by the way, the FBI would get documents. They would subpoena documents. They would gather a whole host of information. And yeah, I agree with Judge Kavanaugh that they would not issue a conclusion and say, you know, Judge Kavanaugh is either guilty or not guilty. But they would gather a lot more information, whether it corroborated or undercut Judge Kavanaugh. Either way, you know, that would be determined by looking at all the evidence.

INSKEEP: Just a bit of a fact check here - when Judge Kavanaugh, when being asked about bringing in the FBI, keeps saying - kept saying, I'll do whatever the committee wants. Is it correct to think of that as a dodge because the committee is not who would bring in the FBI on this?

MARIOTTI: Well, certainly, it is a dodge in this sense because I think it was apparent that the majority of the committee did not want the FBI to investigate. So it was essentially a way of saying no without saying no. But the president would be, certainly, the one that could direct the FBI to do this. Presumably, since the majority of the committee is Republican, if they asked the president to investigate - to have the FBI investigate before they were willing to advance the nominee, that would presumably have some influence over the president. But in any event, it just appeared to be a way to not say no but effectively say no.

INSKEEP: Was this hearing well-structured to find the truth?

MARIOTTI: I think it was particularly poorly structured to find the truth. And it was constructed in a way that made it nearly impossible to find out the truth. We had - each senator only had five minutes to ask questions, which is an impossibly small amount of time to build any kind of line of questioning. It allowed the witness, when it was Judge Kavanaugh, for example, to give long answers that ate into the clock of the questioner so that, essentially, each senator was only able to ask him, you know, just a few questions.

And, you know, you saw the same thing on the other side. When Dr. Ford was being questioned, the Republican questioner - the prosecutor - you know, would ask a few questions, and then she would have to give up her questioning to another questioner. That's not very good. Also, you only had two witnesses. I mean, there's so many more witnesses that could have been called.

INSKEEP: Former federal prosecutor Renato Mariotti, thanks very much.

MARIOTTI: Thank you. Transcript provided by NPR, Copyright NPR.