If one had to make an educated guess, one might suspect the White House is engaged in a giant game of chicken with the undecided Republican senators. An FBI investigation without interviews of Ford and Kavanaugh won’t pass the laugh test. The GOP senators who wanted the FBI inquiry could be faced with the prospect of a vote without a credible FBI report, which they successfully insisted on. One would think — or hope, at least — the three holdout senators would realize that a half-baked FBI investigation means there really is a big problem and oppose the nomination.
Former federal prosecutors say this doesn’t pass the smell test. Joyce White Vance, a former federal prosecutor tells me, “The White House is playing chicken with anyone who believes that this process is intended to be something more than a rubber stamp of their nominee, no matter how blemished.” Likewise, former federal prosecutor Harry Litman says that, even more than the failure to interview Kavanaugh, the effort to limit the investigation to stay away from issues about alcohol and possible lying under oath should serves as a “screaming alarm.”
Sen. Richard Blumenthal (D-Conn.), who sits on the Judiciary Committee, tells me that the White House is “willing to gamble” that the three senators will accept an incomplete report without question either the accused or accuser. “I don’t see how Sen. Flake accepts that,” Blumenthal says. He thinks the FBI is being deliberately kept from Kavanaugh because “each time he talks, the more trouble he gets in.”
By tweet, Senate Majority Whip John Cornyn (R-Tex.) tried to lend a hand, saying it was a “joke” to insist the accused and the accuser be interviewed since both testified before the committee. Actually, the joke was the failure of Republicans (and, to some extent, Democrats) to pin down Kavanaugh on specific facts and calendar entries. The FBI investigators would not put up with evasions. They’d ask pointed questions that Kavanaugh could not deflect with the “Have you?” sort of responses. They would note demeanor. They would press both for the names of witnesses.
In trying to rush through an FBI report that excludes the key participants, a neon sign is effectively flashing before the Senate: “Problem nominee!” If, as seems likely, Democrats take one or both houses after November’s midterm elections, Democrats will be sure to investigate the FBI’s handling of this as well as examine Kavanaugh’s testimony under oath. Blumenthal says, “I would be in favor of it. This process has been so flawed.”
Flake and Sens. Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska) should be crystal clear if they really meant what they said last week: They don’t vote yes without a complete FBI investigation that includes interviews of Ford and Kavanaugh. If the White House and Kavanaugh cannot ensure that, it’s time to move on. The White House should know that if it continues to play this game of chicken, they may run out of time to get a substitute nominee through this year.
Meanwhile, Kavanaugh’s temperament has become a major issue. Blumenthal — who is leading one of the emoluments lawsuits to which 200 members of Congress have signed on — would, if the case reaches the Supreme Court, seek Kavanaugh’s recusal. “Without question,” he says. “I would seek to recuse him. Absolutely.” As he observes, recusal requests would also follow in a slew of cases in which Democratic attorneys general are litigating.
In short, even if the three GOP senators crumble and vote to put Kavanaugh on the court without a serious FBI investigation, the result will be a hobbled court and a justice whose partisan outburst deprived him of legitimacy as a neutral arbiter.