Judge Brett Kavanaugh may be in a bizarre legal/political limbo, but his nomination is still alive. That would come as something of a surprise for those who saw his timid and oh-so-careful Fox News interview with Martha MacCallum early last week. Kavanaugh robotically repeated a limited set of talking points. He seemed slightly bewildered, in a fog. Reports were that he had not inspired confidence at 1600 Pennsylvania.
But then came along Michael Avenatti, the lawyer who so recently made his name representing porn actress Stormy Daniels, with a sworn declaration from a woman who claimed that Kavanaugh was part of a group who conducted gang rapes at parties in the 1980s. Avenatti seemingly did what the White House could not—he knocked Kavanaugh out of his funk. A recently released transcript reveals that it was the fantastical accusations made by the lawyer’s client, Julie Swetnick, that stoked the outrage Kavanaugh displayed in Thursday’s Senate hearing. Many on the right agree that the judge’s passionate self-defense buoyed what had been his sinking chances.
By the time Avenatti brought his client forward, Kavanaugh had already been interviewed twice by Senate staffers about late-breaking accusations he had committed sexual assault.
On Monday, Sept. 17, the nominee was questioned by Senate staffers about charges leveled by professor Christine Blasey Ford. Kavanaugh denied the accusations, but made an effort to be gentle in his rebuttal: “Sexual assault is horrible and traumatic,” Kavanaugh said. “But I did not do this. Maybe something happened to Ms. Ford by someone else at some time in high school, but I know I did not do this.”
Kavanaugh was questioned again the next week: On Tuesday, Sept. 25, committee staff asked about allegations made by fellow Yale alum Deborah Ramirez. He denied those charges, too, and did so in the same reserved, judicious manner. He declared that the accusations and the process were “not right” and “an outrage” but he maintained a studied calm. He even remained calm as the Avenatti allegations were given their first tryout—at that point, Senate investigators acknowledged “We don’t even know who [Avenatti’s] client is, or clients, he’s apparently representing in this matter.” Kavanaugh did, however, begin to show signs that he was getting fed up. Asked for his “general reaction” to Avenatti’s claims, the judge says “I think it’s absurd, outrageous, a joke, a farce, the twilight zone.”
Things got even stranger during that hour-long Tuesday interrogation as investigators moved on from Avenatti to asking Kavanaugh about “an anonymous letter about an anonymous person and an anonymous friend” presenting allegations Kavanaugh had once pushed a woman up against a wall. And he was also asked about the man from Rhode Island who had called Senator Sheldon Whitehouse to claim Kavanaugh and Mark Judge had raped a friend of his on a boat in Newport harbor in August 1985. The man bragged to Senate staff that he had given the miscreants both a proper thumping for their crime. Kavanaugh denied all, and the investigators didn’t press the matter as they were already convinced the accusation was pure bunk. It turned out the accuser also regularly tweeted calls for a military coup to overthrow Donald Trump. (Since then, the Rhode Island man has recanted his story completely. Senator Chuck Grassley has referred the matter to the Justice Department, asking for the man to be prosecuted for making false statements to Senate investigators.)
That was Tuesday’s gantlet. But then came Wednesday—the day before both Blasey Ford and Kavanaugh were to appear in front of the Senate Judiciary Committee. Majority and minority committee staffers phoned the judge at his chambers at 8:07 that evening. The purpose was to question him about two new sets of allegations: (1) the accusations of Julie Swetnick—and (2) charges leveled against him by an anonymous accuser in a letter delivered to Senator Kamala Harris’s San Diego office.
Kavanaugh is asked at the start of the interview whether or not he knows Swetnick. “No, don’t know her” he replies.
Then begins the litany of allegations that had been advertised by Avenatti (some of which Swetnick has since tried to walk back). Kavanaugh is asked about each and denies each unequivocally. But it is in being confronted with Swetnick’s lurid accusations that Kavanaugh gets angry. He doesn’t just deny her claims, he accuses her, flat-out, of telling lies.
“Ms. Swetnick claims that she observed you being overly aggressive with girls during these house parties,” a judiciary committee staffer says. “Did you ever become abusive or physically aggressive with women at house parties between 1981 and 1983?
“No,” says Kavanaugh, “and she's lying. She was supposedly at Gaithersburg High School. I don't know. I don't know her. I don't know anyone like her. This is just total B.S.”
“She also alleges that you fondled girls without consent between 1981 and 1983. Did you fondle girls without consent between 1981 and 1983?”
“No, she’s lying. I don’t know her. I didn’t — we didn’t hang out. I didn’t know people from Gaithersburg High School, which is way out 270. This is a joke. …Give me a break. This whole thing is a farce.”
But the questions continued. Kavanaugh is asked whether he grabbed girls, whether he pressed his body against them, whether he tried “to shift a woman’s clothing to expose her,” whether he made “statements designed to demean female partygoers,” whether he had said things to humiliate female partygoers, whether he had made statements “designed to embarrass female partygoers from 1981 to 1983?” To each question he answers a terse “No.” But you can’t read the transcript and not recognize that Kavanaugh was now intimately familiar with statements designed to embarrass and humiliate.
The questioners move on to ask if he ever spiked punch with grain alcohol; he’s asked if he ever spiked punch with Quaaludes. He answers, under penalty of felony perjury, that he did not. The Senate staffers have a few more questions for the judge: “Going back to these allegations of gang rape, did you ever line up outside a bedroom to await a turn raping an inebriated woman?”
Kavanaugh answers “No.”
“Did you observe men taking part in the gang rape of an inebriated woman?”
“Did you ever observe men at a party lining up for the purpose of gang raping an inebriated woman?”
Having finally exhausted their questions regarding Avenatti’s client, a committee staff member asks Kavanaugh for his “general reaction to these allegations.”
The judge lets loose: “I'm amazed in the United States that you can get the amount of attention for a totally bogus, B.S. charge that this received, just made up about me and friends of mine, too. And, you know, this is just a — it's a disgrace. It's a circus. I don't know where this ends, but, you know, I always said I'm on the sunrise side of the mountain, optimistic, see the day that's coming. You know, this—I fear for the future. That's it.”
Those who saw or heard Kavanaugh’s testimony the next day will recognize in that exasperated outburst his most compelling statements. The judge appears to have found his own talking points and the tone in which to deliver them.
Which isn’t to say he was able to get straight to the business of writing his statement Wednesday night: He still had to answer a string of questions related to an anonymous accusation that had been dropped in the mail to Senator Kamala Harris. He responded to such delicate questions as “Have you ever slapped a woman and told her to be quiet while forcing her to perform oral sex on you?” and “Have you and a friend ever taken turns raping a woman?” Other more salacious questions were put to him bluntly. He mostly answered “No,” but did vent his outrage at being accused of committing vile, violent crimes: The “whole thing is ridiculous. Nothing ever—anything like that, nothing,” Kavanaugh said. “I mean, that’s — the whole thing is just a crock, farce, wrong, didn’t happen, not anything close.”
It was in that frame of mind that, a little while later, the judge sat down to finish writing his opening statement. And so he began his Thursday testimony signaling, with a guarantee of authenticity, that it would be something different, something less diffident: “Mr. Chairman, Ranking Member Feinstein, members of the committee, thank you for allowing me to make my statement. I wrote it myself yesterday afternoon and evening. No one has seen a draft, or it, except for one of my former law clerks.”
Avenatti’s strategy made a certain sense — the more accusers, the more heft all their accusations would have. But it also proved to be a breaking point, awakening an urgent sense of self-preservation in Kavanaugh without which he would have been finished.