Text messages reveal Kavanaugh effort to refute sexual misconduct allegation before it became public, raising questions about comments made under oath

  • Supreme Court nominee Brett Kavanaugh and members of his team worked behind the scenes to refute an allegation of sexual misconduct before it surfaced in The New Yorker last month, according to text messages obtained by NBC News.
  • The existence of the messages, which have not been independently obtained by CNBC, is striking.
  • Kavanaugh has testified, under oath, that the first time he learned about the accusation was in "in the New Yorker story" that was published Sept. 23.

Supreme Court nominee Brett Kavanaugh and members of his team worked behind the scenes to refute an allegation of sexual misconduct before it surfaced in The New Yorker last month, according to text messages obtained by NBC News.

The text messages were exchanged between two friends of the judge. They reveal that Kavanaugh had personally discussed an allegation from former Yale University classmate Deborah Ramirez before it was made public. Ramirez claims Kavanaugh drunkenly exposed himself to her at a party decades ago. In one message, one of those friends says Kavanaugh asked her to publicly defend him.

The messages, which have not been independently viewed by CNBC, are striking because Kavanaugh has testified under oath that the first time he learned about the accusation was in "in the New Yorker story" that was published Sept. 23. The federal appeals court judge has also criticized Ramirez for "calling around to classmates trying to see if they remembered" the incident before she came forward with her accusation.

The messages were sent between Kerry Berchem, a lawyer and former Yale University classmate, and Karen Yarasavage. Berchem, a partner at the law firm Akin Gump, told NBC News that she had reached out to the FBI multiple times, on Sunday and Monday, but had not heard back.

Last Friday, President Donald Trump ordered the FBI to reopen its background investigation into Kavanaugh after key Republicans made that a contingency for moving the nomination to a full Senate vote. The president directed the agency to complete its investigation in a week.

"I have not drawn any conclusions as to what the texts may mean or may not mean but I do believe they merit investigation by the FBI and the Senate," Berchem told NBC in a statement.

The FBI declined to comment Tuesday morning.

In a memo obtained by NBC that outlined her conversations with Yarasavage, Berchem suggests that there may be a number of witnesses who could have relevant information.

Berchem also writes that Kavanaugh "and/or" his friends "may have initiated an anticipatory narrative" as early as July to discredit Ramirez — months before Kavanaugh said he first became aware of the accusation.

A spokesperson for the Senate Judiciary Committee, which voted last week along party lines to advance Kavanaugh's nomination to the full Senate, denied that anything in the text messages contradicted Kavanaugh's sworn statements.

George Hartmann, a spokesman for the committee's chairman, Chuck Grassley, R-Iowa, told NBC News that "the texts from Ms. Berchem do not appear relevant or contradictory to Judge Kavanaugh's testimony."

The White House has not responded to a request for comment.

Kavanaugh has vigorously denied Ramirez's allegation, as well as two others that have surfaced in recent weeks. He has alleged that the accusations are part of a "smear" campaign motivated by political revenge. Kavanaugh, a longtime judge on the U.S. Court of Appeals for the D.C. Circuit, served in the White House under President George W. Bush and worked in the Office of the Independent Counsel investigating President Bill Clinton in the late 1990s.

The judge and his conservative supporters have blasted Democrats for what they say is an 11th-hour attempt to discredit the president's nominee.

In recent days, Democrats have put more attention to questions about Kavanaugh's credibility and sworn testimony than to the details of the decades-old allegations. In particular, the party has zeroed in on whether the judge has misled lawmakers and the public about his drinking habits while in high school and college.

While Kavanaugh has said he was focused in those days largely on academics, sports and service projects, a number of classmates have come forward painting a far different picture — including frequent drunkenness and belligerence.

On Monday, The New York Times reported that Kavanaugh was involved in a bar fight in 1985 in which he was accused of throwing ice at another patron, leading to a brawl that left the patron bloody, according to a police report. An NBC affiliate in Connecticut obtained a copy of the police report Tuesday.

It is not evident that any charges were filed, and no one appears to have been arrested. Kavanaugh declined to tell the police at the time whether he threw the ice. Representatives for Kavanaugh did not respond to requests for comment Tuesday.

Mark Sherman, an attorney for Chris Dudley, a Kavanaugh friend who was named in the police report, told CNBC Tuesday that "after an investigation, Chris Dudley was never arrested by Yale or New Haven Police, was never charged with a crime, and never set foot in court."

New Haven police spokesperson David Hartman told reporters Tuesday that it was possible that there were other police reports that mentioned Kavanaugh, but noted that the "reporting requirements and the reporting systems were very different" in the 1980s, when Kavanaugh was at Yale.

"So, I think it would be unsafe to say there couldn't be another report that names any of the people involved," he said, according to the NBC affiliate. "But there's nothing to indicate that there was an arrest or anything like that."

-- CNBC's Dan Mangan contributed to this report.

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