As early as today, the FBI may conclude its renewed background investigation of Supreme Court nominee Brett Kavanaugh — and predictably enough, Senate Republicans are already insisting that the report will never see the light of day.
The FBI’s report will be given to all Senators, but it will not be released publicly, because, as Republican Senate Majority Leader Mitch McConnell of Kentucky has put it, “That’s the way these reports are always handled.”
However, there is likely to be intense pressure brought to bear for some form of public release, given the enormously high stakes involved, not to mention the searing public tensions that have erupted around Christine Blasey Ford’s charges against Kavanaugh, and the need for some kind of resolution of them, if that’s even possible at this point.
On these grounds, Democrats are calling for the release of the FBI’s findings in some form. But what happens if Republicans continue to refuse, something that probably would have the support of President Trump? Is there any recourse?
Yes, there may in fact be recourse. If Democrats were to take control of the Senate, they’d be in a position to aggressively push for the report’s release in some form, and they might be able to succeed. If they take control of the House, they’d be able to conduct a measure of oversight into the White House’s handling of this whole affair that could also prove revelatory.
“It’s certainly in the public’s interest, and in the interests of many members on both sides of the aisle, to have transparency about the nature of these very public allegations,” Congressional scholar Sarah Binder told me. “It seems reasonable that the public should know the outcome of charges against the nominee.”
Republicans have pointed to a 1990s memorandum of understanding between the Judiciary Committee and the White House counsel concerning FBI background checks into nominees, which says such investigations are to remain confidential. So in this sense, McConnell has a point.
But Binder points out that if Democrats won the Senate — which is certainly difficult but not impossible — they’d control the Judiciary Committee, which could push to renegotiate this agreement with the White House. She noted that keeping this particular report under wraps seems particularly questionable, given that we’ve already seen such “public attention to it” and that the findings will have such immense “public consequences.”
“The way in which this whole thing has been handled should be an issue that Democrats talk about before the election,” Congressional analyst Norman Ornstein added in an interview with me. “There’s no reason why Democrats in the Senate can’t say, ‘If we take the majority, we’re going to be very transparent about what went on,’” which could include a vow to push for the release of “an appropriate version of this report.”
The reason this matters is that, without any kind of public release of the FBI’s findings on Kavanaugh, a spin war will erupt that threatens to leave the public as uncertain as ever. Such background checks are less about reaching conclusions than about compiling information, and in this case the additional information will be designed to assist lawmakers to better weigh the accounts from Blasey Ford, Kavanaugh and others — as well as their credibility.
Senators on either side will of course characterize what’s in the report in ways that make one side appear more credible than the other, and in the nuances will be crucial — yet those nuances could end up getting buried under layers of he-said/she-said obfuscation, particularly if the public and journalists have little or nothing to judge the spin war against.
Beyond this, the report’s release would help us better understand just how comprehensive a background check the FBI did end up conducting.
“Democrats should be threatening that if they regain power, they will push to release the report that McConnell is trying to keep private, and to reopen the investigation into Kavanaugh to ensure that it is done in the complete way that the White House is preventing,” Brian Fallon, the executive director of Demand Justice, which is leading the charge against Kavanaugh, told me.
All this is a reminder of just how high the stakes are in this fall’s elections — as well as a reminder that if Kavanaugh is confirmed, the war over him will likely continue, with undiminshed intensity.
That’s something that nobody is considering — even if Kavanaugh gets on the court, his placement there will be challenged. The fight will go on.
Meanwhile, two of Brett Kavanaugh’s former Yale classmates, who initially supported his confirmation to the Supreme Court, have written a letter retracting their endorsement due to his blatantly partisan statements at last week’s Senate hearing.
The letter, which was directed toward Senate Judiciary Committee Chairman Chuck Grassley and Ranking Member Dianne Feinstein, opened by mentioning the initial statement of support for Kavanaugh that had been signed by twenty-three of his Yale Law School classmates. It then goes on to argue that two of the signatories for that letter, Michael J. Proctor and Mark Osler, feel compelled to “withdraw our support for that letter and Judge Kavanaugh’s confirmation.” Their reasons had less to do with the question of whether Kavanaugh or his most prominent accuser, Christine Blasey Ford, is telling the truth and more to do with Kavanaugh’s partisan statements during the hearing.
Proctor and Osler are not alone in expressing concern about Kavanaugh’s decision to characterize the hearings as a Democratic witch hunt and to vow that “what goes around comes around” against the Democrats pursuing the inquiries. Over 900 law professors have signed a letter raising the same concerns about Kavanaugh.
The question at issue was of course painful for anyone. But Judge Kavanaugh exhibited a lack of commitment to judicious inquiry. Instead of being open to the necessary search for accuracy, Judge Kavanaugh was repeatedly aggressive with questioners. Even in his prepared remarks, Judge Kavanaugh located the hearing as a partisan question, referring to it as “a calculated and orchestrated political hit,” rather than acknowledging the need for the Senate, faced with new information, to try to understand what had transpired. Instead of trying to sort out with reason and care the allegations that were raised, Judge Kavanaugh responded in an intemperate, inflammatory, and partial manner, as he interrupted and, at times, was discourteous to questioners.
Again, if Kavanaugh is confirmed, these concerns will not suddenly go away.