The FBI’s yet-unfinished findings into misconduct allegations leveled against Supreme Court nominee Brett M. Kavanaugh will be the most sought-after documents in Washington once the bureau completes its investigation in the coming days.
Normally, the FBI report would go into Kavanaugh’s background file at the Senate Judiciary Committee — a vault of information accessible only to senators and a select circle of aides. But a growing number of senators from both parties say some version of the report, or at least a summary of the FBI’s findings, needs to be made public considering its newsworthiness.
Senior Republicans are also publicly confident that the FBI’s investigation will exonerate Kavanaugh of accusations of misconduct, and they are eager to air that publicly as they push him through to a final confirmation vote this week.
“I personally think that would be a good idea,” Senate Majority Whip John Cornyn (R-Tex.) said Tuesday of releasing a summary of the report. “In this instance, I don’t know how you can accuse somebody of the terrible things that Judge Kavanaugh has been accused of and have people satisfied without some sort of summary of what the FBI found.”
Sen. John Thune (S.D.), the No. 3 Senate Republican, also said he expected that “in these circumstances,” the report would be made public. And Sen. Thom Tillis (R-N.C.), who like Cornyn sits on the Judiciary Committee, also said he would have no issue with at least a summary of the FBI’s report being made public.
“This is a supplemental background investigation,” Tillis said. “We should explain to people what that means. They don’t draw conclusions; they gather information. It’s left up to us to draw conclusions.”
The findings in the highly anticipated report will help determine whether Kavanaugh, who is facing accusations of sexual misconduct that he has vehemently denied, will be able to lock down the minimum 50 votes in the Senate to be confirmed to the Supreme Court. Key swing votes such as Sen. Susan Collins (R-Maine), Lisa Murkowski (R-Alaska) and Jeff Flake (R-Ariz.) are all reserving their final judgment on Kavanaugh until the FBI is finished.
The strict confidentiality of the FBI background check file, which will be updated with the bureau’s latest report on the Kavanaugh allegations, is governed by a 2009 agreement between the White House and the Senate Judiciary Committee. That agreement allows only senators and 10 congressional aides with “top secret” clearances to review FBI background information for Supreme Court nominees. Unauthorized disclosure of the material could lead a senator to be expelled or an aide to be fired.
The White House or the Senate would decide what, if anything, should be released publicly. The White House declined to comment Tuesday on whether the FBI report — which will not come to a conclusion on whether the accusations are credible — or a version of it will be made public.
When the FBI investigated sexual harassment claims against now-Justice Clarence Thomas by Anita Hill, its final report did not leak. But NPR obtained a four-page affidavit from Hill in which she alleged years of harassment by Thomas and published the information, forcing the committee to hold an extraordinary second round of hearings to address those accusations.
The prospect of bits and pieces leaking from Kavanaugh’s report is at the forefront of some Republicans’ minds.
“I was talking to another senator today who mentioned that there had been some discussion about releasing them publicly since they’re going to be selectively leaked anyway,” Sen. Bob Corker (R-Tenn.) said. “So we can all deal with the same sheet of paper.”
Sen. John Neely Kennedy (R-La.), who also sits on the Judiciary Committee, said the report’s contents should be made publicly available.
“I think, in this instance, in my opinion, we need to take steps to make sure the American people know what’s in the report in its totality,” Kennedy said. “As opposed to just leaked portions of it.”
But such reports do contain sensitive material and interviews with witnesses who would prefer to remain confidential. Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) warned that releasing the Kavanaugh material publicly, even despite its newsworthiness, could dissuade future witnesses from cooperating with the FBI.
“I think that if you did anything different than it’s been done in all the years I’ve been in the Senate, you might actually hurt the FBI getting the information they want,” Grassley said.
Senate Majority Leader Mitch McConnell (R-Ky.) also signaled caution, noting Tuesday that all senators will have access to the FBI report and reiterating that the Senate will vote this week. And Sen. Dianne Feinstein (Calif.), the committee’s top Democrat, also stressed that the report can’t be released and added: “I don’t know what’s going to be in it. After that, we’ll find out.”
Still, Senate Minority Leader Charles E. Schumer (D-N.Y.) wants all senators to be briefed by the FBI on its investigation at least 24 hours before senators take a procedural vote to advance Kavanaugh’s nomination. And Sen. Patrick J. Leahy (D-Vt.), a former chairman of the Judiciary Committee, said he also believed the report should be released.
“It should be made available” to the public, Sen. Richard Blumenthal (D-Conn.) said. “No question.”
Mike DeBonis and Gabriel Pogrund contributed to this report.