Sen. Jeff Flake Won’t Vote for Brett Kavanaugh If He’s Shown to Have Lied to the Senate Judiciary Committee. But Which Lies Matter?

Brett Kavanaugh is a liar. During testimony before the Senate Judiciary Committee, Kavanaugh lied about whether he’d ever attended a gathering like the one Christine Blasey Ford described, likely lied about the definition of a “Devil’s Triangle,” and lied about when he learned of allegations made by Deborah Ramirez, among a slew of other falsehoods.

A penchant for lying is typically disqualifying for anybody nominated to a judicial position, and Sen. Jeff Flake, R-Ariz., reiterated Monday in New Hampshire that he could oppose Kavanaugh’s nomination to the Supreme Court if the nominee is shown to have lied under oath.

But Republicans have signaled that they don’t consider all lies to be equal, and which lies are considered disqualifying could determine Flake’s vote. “I’ve said, and some of my colleagues have said as well, that any nominee who lies to the committee, that’s disqualifying,” Flake told reporters after his speech at the New Hampshire Institute of Politics at St. Anselm’s College in Manchester.

During an interview with “60 Minutes” that aired on Sunday, Flake told Scott Pelley that if Kavanaugh had lied to the Senate Judiciary Committee in his testimony, that would effectively rule out a Flake vote in favor of the nominee. But those comments were in response to a question on Kavanaugh’s statements on the sexual assault allegations from Ford, Ramirez, and Julie Swetnick that have dogged his nomination for weeks.

One of Kavanaugh’s more glaring lies appears to be his claim that he had not received or exploited confidential internal Democratic emails from Republican operative Manny Miranda during the 2000s when Kavanaugh worked in the Bush administration. Another set of falsehoods comes from Kavanaugh’s denial of his involvement in the development of the Bush post-9/11 detainee and torture policies — testimony that has been called into question by Senate Democrats. 

Flake on Monday told The Intercept that he didn’t find those denials to be untruthful. “Those of us who sat through the 30 hours of testimony discounted those claims,” said Flake, adding that he didn’t think there was a chance Kavanaugh committed perjury on those issues.

But Flake’s Democratic colleagues disagree, referring to Kavanaugh’s testimony on those topics as untruthful and misleading. Kavanaugh’s involvement with Bush administration judge selection controversies popped up on multiple occasions during the hearings, and the nominee’s denials are hard to reconcile with mounting evidence to the contrary.

“Brett Kavanaugh used materials stolen from Democratic senators to advance President Bush’s judicial nominees,” tweeted Sen. Dianne Feinstein, D-Calif., on September 7, referencing a Slate article written by Lisa Graves, the former chief counsel for nominations for the ranking member of the Senate Judiciary Committee. “He was asked about this in 2004, 2006, and this week. His answers were not true.”

The questions extend to other policies as well. Sen. Dick Durbin, D-Ill., said in a statement on September 11 that Kavanaugh was not being truthful about his involvement with Bush-era policies on torture and detainees. “This is a theme that we see emerge with Judge Kavanaugh time and time again — he says one thing under oath, and then the documents tell a different story,” said Durbin. “It is no wonder the White House and Senate Republicans are rushing through this nomination and hiding much of Judge Kavanaugh’s record — the questions about this nominee’s credibility are growing every day.”  

MSNBC analyst John Heilemann also pressed Flake as to what his bar was for perjury, and Flake told him the dissembling ought to be part of the FBI investigation.

Many of the documents that could shine light on Kavanaugh’s time in the White House are being withheld by the National Archives and will not be released until the end of October. Yet Flake — whose decision on Friday to ask for a pause in the process after being confronted in a Senate elevator by two survivors of sexual assault, Ana Maria Archila and Maria Gallagher, allowed the FBI to investigate allegations of sexual misconduct on the part of Kavanaugh — doesn’t think there’s much to the claims. “Not there, not on that stuff,” said Flake.

Flake also suggested that Kavanaugh’s lying about his drinking may be difficult to prove.

.@JeffFlake affirms he would vote against Kavanaugh's nomination if the FBI probe determines he lied to the Judiciary Committee about "demonstrable" matters. But hesitates on whether that applies to charges that Kavanaugh misrepresented his relationship with alcohol #nhpolitics pic.twitter.com/Tw0m3qK6ly

— Travis (@PresidentTRav) October 2, 2018

Flake’s slowdown of the confirmation process was cited by a number of protesters outside the New Hampshire event as their reason for being there to convince Flake to oppose Kavanaugh. Around 70 protesters chanted slogans and held up signs imploring Flake to reconsider his pledge to vote for Kavanaugh’s nomination. “They have to be exposed to the people,” said Madison Russo, who works with NextGen America in nearby Nashua.

Jen Saeger, who said she was at the protest with Rights and Democracy New Hampshire, hoped a show of people to protest the nomination and pressure Flake would be sufficient to convince the senator to rethink his position. In-your-face activism is necessary in this moment, Saeger believes, because politicians aren’t listening to the people. “You have to make it personal for them,” said Saeger. “It’s the only way of getting through.”

Earlier in the day, Flake was met with protest in Boston when he addressed attendees of the Forbes Under 30 Summit. New-wave Democrats Ayanna Pressley and Alexandria Ocasio-Cortez joined Boston Mayor Marty Walsh and figure skater Adam Rippon to rally the crowd against Kavanaugh.

All the popular action might be having an effect on the senator, whose political ambitions were on display during his visit to New Hampshire. Flake told the Manchester audience to his speech on Monday that he had failed his tribe, or party, by not attacking Ford’s testimony during last week’s hearing — but didn’t appear to see that failure as a negative. “I’ve been failing my tribe for some time now,” said Flake. “I hope to continue to fail my tribe.”

The senator further distanced himself from fellow Republicans by indicating to the crowd in Manchester that, in contrast to his Friday statement that he would support Kavanaugh, he was no longer a solid “yes” vote. “I, for one, am waiting for the information that will come from the supplemental FBI investigation to inform my decision,” Flake said during his speech on Monday.

If Flake is serious about his comments on perjury and Kavanaugh’s nomination, he may fail his tribe again — but only if Kavanaugh’s untruths fall under the narrow scope of perjury that Flake is considering.

Correction: October 2, 2018, 5:15 p.m.
A previous version of this story misspelled the last name of Madison Russo. It has been updated.

Top photo: Senate Judiciary Committee member Sen. Jeff Flake speaks with colleagues after a hearing in Washington, D.C., on Sept. 28, 2018.