As early as today, the FBI may conclude its renewed background investigation of Supreme Court nominee Brett M. 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 might 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 2009 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.”
A strong public interest
That might set up a conflict with the White House, which would likely oppose such a release. But that might be a political fight Democrats want to have. There would be a strong public interest in this as well, since a release would showcase the White House’s handling of this whole affair at a time when Kavanaugh (should he be confirmed) would already have taken a seat on the Supreme Court.
Separately, a Democratic-controlled House could examine any initial efforts by the White House to place limits on the FBI’s renewed background check. There was great confusion around these limits — deliberately fomented by the White House and Republicans — but the gist appeared to be that the White House and Senate Republicans conspired to dramatically limit the FBI’s probe, before political pressure forced them to relent and expand it.
We still don’t know for sure how limited the probe will be — as late as Tuesday night, lawyers for Ford had sent a letter to the FBI claiming she has not been contacted for an interview. On the other hand, The Post reports that the FBI has now interviewed Timothy Gaudette, whose house was the cite of a gathering in July 1982 (mentioned on Kavanaugh’s calendar) that could have been the one Ford was talking about. This suggests the FBI is, in fact, casting a wide net.
A Democratic-controlled House could conduct oversight that would seek communications between the White House and the FBI that might reveal what, exactly, the White House did to initially constrain the probe. Democratic Rep. Jerrold Nadler of New York, who would take over as chair of the Judiciary Committee, has said he would seek such communications.
And it appears this is something FBI officials are concerned about right now:
One political consideration looms larger than those issues, according to people familiar with FBI and administration deliberations: If the Democrats win control of the House, lawmakers could launch investigations into exactly what White House and bureau officials said internally about the Kavanaugh matter.
In other words, the looming prospect of real oversight — that is, should Democrats take back the House — is making it harder for the administration to constrain the FBI’s background check investigation. And that’s as it should be.
Why it matters
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 Ford, Kavanaugh and others — as well as their credibility.
Senators on both sides will of course characterize what’s in the report in ways that make one side appear more credible than the other, and 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 ended 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.