“We’ll determine that,” Sen. Mazie Hirono (D-Hawaii) said Monday when asked about a perjury inquiry. | M. Scott Mahaskey/POLITICO Kavanaugh Confirmation ‘Kavanaugh has lied’: Progressives push Dem senators to pursue perjury inquiry Democratic senators say the Supreme Court nominee’s ‘temperament’ is a top concern.

Senate Democrats are pushing for more witnesses to be interviewed in the FBI’s sexual misconduct investigation of Brett Kavanaugh, but they are largely sidestepping a big issue for their base: whether the Supreme Court nominee potentially perjured himself.

Democrats are focusing their energy on the broadest possible FBI inquiry this week into the allegations against Kavanaugh, although it’s unclear how deeply that probe will delve into his past drinking habits and other behaviors. While they’ve edged up to the line of suggesting Kavanaugh has misled the Senate, many Democrats are steering clear of a direct call to dig into the judge’s statements under oath for potential misstatements.


“We’ll determine that,” Sen. Mazie Hirono (D-Hawaii) said Monday night when asked about potential perjury. “I think there are so many other areas which raise his fitness for being a justice of the Supreme Court.”

Hirono cited Kavanaugh’s “temperament” as a top concern following his defiant testimony last week about Democrats’ handling of the misconduct allegations against him, accusing his critics of “a calculated and orchestrated political hit.”

But liberal groups that have stoked activists’ furor over his nomination are pressing for more fight.

Sign up here for POLITICO Huddle A daily play-by-play of congressional news in your inbox. Email Sign Up By signing up you agree to receive email newsletters or alerts from POLITICO. You can unsubscribe at any time. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

"There really is no reason for the Democrats not to make a perjury referral to the Justice Department at this point,” said Brian Fallon, who helms the liberal judiciary-focused activist group Demand Justice. “Kavanaugh has lied about so many things, both large and small, that the Senate looks foolish to look the other way.”

Adrienne Kimmell, a vice president at the abortion-rights group NARAL Pro-Choice America, agreed: “If the Senate truly wants the truth, the Justice Department must launch an independent investigation into Kavanaugh’s pattern of flagrant dishonesty,” Kimmell said.

Fallon and Kimmell's progressive groups joined MoveOn in asking Democrats to seek a perjury probe of Kavanaugh after his first confirmation hearings earlier this month, before Christine Blasey Ford came forward with the first misconduct claim against him.

The FBI’s background inquiry into the claims against Kavanaugh was expanded on Monday, in consultation with swing-vote Sen. Susan Collins (R-Maine), while Democrats on the Judiciary Committee released a list of more than a dozen additional witnesses for investigators to contact beyond the four initially identified.

That Democratic request also asked the FBI to look at “the truthfulness of statements made in relation to these allegations” against Kavanaugh. But Democrats on the Senate Judiciary Committee have yet to specifically ask for a perjury inquiry into the 53-year-old appeals court judge’s statements.

Last year, two Democrats on the Judiciary panel, then-Sen. Al Franken of Minnesota and Sen. Patrick Leahy of Vermont, sought an inquiry into potential perjury by Attorney General Jeff Sessions when the former GOP senator testified about his contacts with Russian officials.

The burden of proof in instances of potential false statements to Congress is considerable, according to legal experts.

Democrats can point to apparent contradictions in statements by Kavanaugh’s former classmates and his testimony to senators last week about his drinking as a younger man, as well as phrases in his high school yearbook, but that doesn’t amount to tangible proof of a deliberately misleading response.

“The things he was talking about that reasonable, thinking people believe he was lying about … those things are just too fuzzy,” said Jennifer Rodgers, a former federal prosecutor and lecturer at Columbia Law School. “They could call for it as a political play. I just think it’s very tough as a prosecutable case.”

Paul Butler, a professor at Georgetown Law School, pointed out that bringing any criminal case against Kavanaugh would require proof that the statements at issue were “material’ to his testimony.”

“Another issue would be whether the discrepancies are just issues of characterization or semantics, i.e. what's ‘sloppy drunk’ to one person is ‘sometimes I had a few too many’ to Kavanaugh,” Butler said by email.

Kavanaugh told senators last week during the hearing in which he and Ford testified about her high school-era assault allegation against him that he had “too many” beers. The judge later denied that he had blacked out while drunk, and later professed that a yearbook reference to “ralphing” referred to eating spicy foods rather than consuming too much alcohol.

President Donald Trump himself, however, said Monday that he viewed Kavanaugh as acknowledging “difficulty as a young man with drink.”

“Let me think about it,” the Judiciary panel’s top Democrat, California Sen. Dianne Feinstein said on Monday when asked whether Democrats should press for a perjury inquiry into Kavanaugh’s statements during his confirmation hearing.

For the moment, Democrats have solid political grounds for steering clear of a perjury inquiry: The FBI’s one-week background investigation into the allegations against Kavanaugh has buy-in from Collins and other moderate GOP senators they’ll need to turn against the judge if they want to bring down his nomination.

And even if the FBI doesn’t come back with new, damning information that might turn those few undecided Republicans against Kavanaugh, Democrats are making a broader, temperament-driven case against the judge as unfit to serve.

“I worry that the FBI report will come back without a definitive conclusion, and that may give cover to some people who want to vote yes,” Sen. Chris Murphy (D-Conn.) told reporters Monday. “But I don’t want the FBI investigation to take away from the other parts of his testimony where he made it clear that he was an unsuitable nominee for the court.”

Meanwhile, Republican leaders are already slamming Democrats’ existing calls for a broad FBI inquiry touching on Kavanaugh’s credibility as politically motivated “character assassination,” as Senate Majority Whip John Cornyn put it Monday.

“It’s hard going into a forum or a tribunal where the judge and jury have already made up their mind,” the Texas Republican said.

But even as many Democrats avoid hitting Kavanaugh with a direct charge of misleading them, some liberals are prepared to go there.

“What should be investigated is his veracity in terms of his testimony before Congress, now and in the past," Sen. Bernie Sanders (I-Vt.) said Monday.

“Look at it this way, do the American people want a perjurer sitting on the Supreme Court? I would doubt it,” Sen. Richard Blumenthal (D-Conn.) said. “And that’s why I do think that the FBI has to investigate statements that arguably are contrary to fact, intentionally made so that they mislead the Senate committee.”

Burgess Everett contributed to this report.

