One of the most infuriating aspects of this whole Kavanaugh saga is the degree to which we are flying blind about some of the most fundamental points of disagreement at its core. Making this even worse, it doesn’t have to be this way.
On the Senate floor late Thursday, Elizabeth Warren (D-Mass.) made a new and tantalizing claim about what’s in the FBI documents on Brett M. Kavanaugh that all senators have now reviewed. Senators are severely limited in what they can say about these documents, which are summaries of the interviews that the FBI conducted as part of their renewed background check into Kavanaugh, after Christine Blasey Ford went public with charges that he sexually assaulted her, which led to a host of new claims like that one and others about his drinking at the time.
Warren noted these limitations and said the following (emphasis added):
“Senators have been muzzled. So I will now say three things that committee staff has explained are permissible to say without violating committee rules. … One: This was not a full and fair investigation. It was sharply limited in scope and did not explore the relevant confirming facts. Two: The available documents do not exonerate Mr. Kavanaugh.
And three: the available documents contradict statements Mr. Kavanaugh made under oath. I would like to back up these points with explicit statements from the FBI documents — explicit statements that should be available for the American people to see. But the Republicans have locked the documents behind closed doors.”
Warren, then, appears to have consulted with Judiciary Committee lawyers and was seemingly told that per the rules, she could divulge just this much about what is in the documents, and not a syllable more. At a minimum, Warren appears to be suggesting that there is material gathered from these FBI interviews that demonstrates that Kavanaugh lied to the committee.
It is hard to know what to make of this. It could simply be a reference to, say, the testimony of Deborah Ramirez. Perhaps she repeated to the FBI her claim that Kavanaugh exposed himself to her at Yale. This would “contradict” Kavanaugh’s under-oath testimony, but it wouldn’t move the ball beyond what we know.
Or, alternatively, this could hint at something more serious. The FBI also interviewed Mark Judge, whom Ford named as an accomplice in Kavanaugh’s alleged attack, and P.J. Smyth. Both these guys seem to have hung out a good deal with Kavanaugh at the time. Warren could be saying that one of those guys told FBI investigators things that contradict what Kavanaugh said under oath about his behavior back in the day, or perhaps even contradict stuff that Judge or Smyth have said. Both have asserted Kavanaugh never behaved, even generally, toward women in the manner alleged.
If that were the case, it would move the ball. It would mean information collected by the FBI, as opposed to merely information alleged in statements to the media, shows Kavanaugh falsified his conduct under oath. We have plenty of these public statements to the media — indeed, three of Kavanaugh’s Yale drinking buddies have published a new piece claiming that Kavanaugh did lie under oath about not blacking out while drinking. But info collected by the FBI would be another matter.
“If the FBI has information from Judge or from Smyth that contradicts either their earlier statements or Kavanaugh’s testimony, that would be a big deal, and something I would think the Senate would be concerned about,” Stephen Vladeck, a law professor at the University of Texas at Austin, told me today. “But we have no way of knowing if it’s that or something far more benign.”
Vladeck added: “It’s more than a little troubling that the Senate is going to vote on something as important as a Supreme Court nomination with the American people entirely in the dark on the matter.”
We are in the dark
That last point is precisely the rub. What is utterly crazy here is that we have no way of evaluating any of this either way, because we are not allowed to see the FBI’s findings, even in summary form. Republicans and Democrats are telling vastly different stories about what those findings show: Republicans are claiming there was no corroboration of any of the charges against Kavanaugh and that there’s nothing new in them. Democrats are claiming not just that the investigation was a sham but also that it doesn’t exonerate Kavanaugh at all.
But on that latter point, Democrats have been confined to only the vaguest of hints. For instance, Senate Minority Leader Charles E. Schumer (N.Y.) put out a statement saying that “to say that this investigation exonerates Judge Kavanaugh,” or to say that “there is no hint of misconduct in these documents,” is “just not true.” Warren went further than this — which seems significant — but both their statements are maddeningly vague.
It doesn’t have to be this way, though. To justify keeping the FBI’s findings secret, 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.
But Robert Bauer, a White House counsel under President Barack Obama, told me today that there are ways around this — that is, if senators and the White House wanted to find them. For instance, senators could simply renegotiate this agreement with the White House counsel, Bauer said.
“The Memorandum of Understanding is just that — it is an understanding that can be amended to address exceptional circumstances,” Bauer told me. Bauer pointed out that this is only the latest in a long line of things that Republicans and the White House have done to limit the public’s ability to weigh the testimony from Ford and Kavanaugh, emailing me this:
First, the Senate structured the peculiar one-day hearing which featured a sharply limited witness list and an outside counsel relieved of her responsibilities in the middle of the proceeding. Then the White House and the Senate majority set exceptional limits on the scope and timing of the subsequent FBI review. Then came this last step of rejecting calls from Republican as well as Democratic committee [members] for a public accounting of the results.
“The refusal of the Senate majority to provide even a summary of the review,” Bauer concluded, is only the last in a series of steps that are “undermining the credibility of the Supreme Court confirmation process.”
The four currently undecided senators — Jeff Flake, Susan Collins, Lisa Murkowski and Joe Manchin — appear to be making a real effort to base their final decision on, among other factors, what the FBI found. But Kavanaugh could very well be confirmed to a lifetime seat on the nation’s highest court in 24 hours, by only the barest majority of senators, or perhaps by only 50 of them, if one or two of those undecided senators votes “yes.” And we could very well have no idea whatsoever what they based their decision on — and no way to evaluate whether they based it on the FBI findings in good faith, or, as appears more likely, merely used them as cover.