When the second sexual-assault allegation came out against Brett Kavanaugh, I predicted Republicans would pull his nomination. I was wrong. Kavanaugh managed to rally the Republican base like a seasoned politician, changing the question from the specifics of the allegations into a broader cultural war, in which Kavanaugh is a stand-in for every conservative who feels unfairly maligned by smug progressive elites (i.e, every conservative).
Sticking with Kavanaugh made no sense, and still makes no sense. Sometimes people do things that make no sense, though. And Republicans may well decide Kavanaugh’s confirmation is a symbolic battle in the kulturkampf that overrides any cost-benefit analysis. That is certainly what the public posturing by the Republican Party, as epitomized by Lindsey Graham, seems to indicate. But there are real signs of weakness beneath the public bravado.
A pair of weekend reports from Axios’s Jonathan Swan conveys the White House’s outward-facing stance. According to administration officials, Kavanaugh is “too big to fail,” because “[t]here’s no time before the [midterm] election to put up a new person.” And if Democrats win a Senate majority, Trump would allegedly prefer to keep the seat vacant rather than compromise with Democrats.
This may be what Trump officials are telling people, and it might even be what they are actually thinking, but the position makes absolutely no sense. If Kavanaugh fails, there might not be enough time to confirm a new justice before the elections, but there will certainly be enough time to confirm one before a new Senate takes over. There are almost two months between the elections and the new Senate. Yes, it would look ugly for Republicans to rush through a new justice after an election that gives Democrats a majority. (Democrats have a two-in-seven chance at the moment.) But this would never stop them from going ahead. The entire Republican caucus, including Susan Collins and Lisa Murkowski, blatantly violated historic norms by holding a Supreme Court spot vacant through all of 2016 just to give their party a chance to fill it. They obviously care a lot about giving their party control of the Supreme Court, and are willing to flout precedent and public opinion to do it. Why would they throw another vacancy away?
Unless the Trump administration is completely ignorant, it is broadcasting threats in order to shore up Republican support for Kavanaugh. Republicans senators may want to pull the damaged nominee and replace him with an equally conservative justice who was never accused of raping anybody, but the White House is shouting that the alternative is getting nobody at all. And why would they make such non-credible threats? Because they’re worried about getting the votes.
That worry also comes through in some of the other reporting. Republicans directing the Kavanaugh fight “conceded [it] to be an uphill battle in which time is not on their side,” reports Politico, also citing a person involved in the battle who puts the odds of confirmation at 50 percent.
The FBI investigation into Kavanaugh is now the key source of uncertainty. Multiple news outlets have reported over the weekend that the White House has dictated limits on the investigation. The FBI reportedly can’t even ask the supermarket that allegedly employed Mark Judge in 1982 for payroll records that would confirm his employment. (Christine Blasey Ford recalled seeing Judge working at the Safeway in Potomac after the alleged attack.)
If the White House chokes off the FBI investigation — or, more precisely, if wavering Republican senators allow the White House to do so and decide to treat an ersatz probe as legitimate — then Kavanaugh might be safe. But the fact that the administration is attempting to strangle the FBI is itself a sign of concern. And the fact that the FBI is obviously leaking about White House interference shows that at least somebody within the Bureau wants to conduct a legitimate investigation.
And what is there to turn up? Potentially a lot. Kavanaugh’s testimony was, at best, wildly misleading. You can find detailed accounts of Kavanaugh’s train of lies here, here, here, and (most thoroughly) here. Would it matter if this is proven? Senator Jeff Flake said on 60 Minutes it would, and provable testimony perjury would be disqualifying. (Obviously there is some cause to doubt whether Flake would follow through on this promise.)
[The New York Times reports this afternoon that the White House has authorized the FBI to interview anybody it deems necessary, as long as the review is complete within a week. The change appears to have come at the behest of Flake, who told an audience, “It does no good to have an investigation that gives us more cover, for example. We actually have to find out what we can find out.” This substantially increases the peril Kavanaugh faces. And Trump’s press conference remarks seemed to signal a willingness to cut Kavanaugh loose if the investigation turns up more damning evidence. “Certainly if they find something I’m going to take that into consideration,” Trump said, when asked if he would consider abandoning Kavanaugh under such circumstances. “Absolutely. I have a very open mind. The person that takes that position is going to be there a long time.”]
The issue of Kavanaugh’s lying is one his conservative defenders have only barely begun to acknowledge. It is probably the central weakness in his candidacy at the moment. Kavanaugh wrote his opening statement the night before his testimony. It was intended to rally his party with red-meat partisan rhetoric, and lead directly to a rapid vote in a flourish of tribalistic emotion. It was not intended to survive a week of close factual scrutiny by the media or potentially the FBI.
Republicans have already prepared a fallback position that Kavanaugh’s underlying offenses happened a long time ago and should not disqualify him. It will be interesting to watch them develop a defense of his perjury. The argument that exists so far simply treats the accusation that Kavanaugh has told lies as so damning that it is unthinkable. “To deny the allegations as he did—invoking his children and parents and so many others who know him—and be lying would mean that he is a sociopath,” editorialized TheWall Street Journal last week. “The logical implication of a ‘no’ vote is that a man with a flawless record of public service lied not only to the public but to his wife, his children and his community,” writes Kimberly Strassel today. “Any Republican who votes against Judge Kavanaugh is implying that he committed perjury in front of the Senate, and should resign or be impeached from his current judicial position, if not charged criminally.”
Well, yes. Kavanaugh has told many, many lies. This doesn’t make him a “sociopath.” Kavanaugh probably believes he did terrible things as a boy, but grew up to be a man who treats women respectfully. I actually accept his characterization of himself as a good father and mentor to girls in his community. The most probable account of his actions is that Kavanaugh (understandably) decided his youthful crimes should not prevent him from attaining the highest position in his career. He also calculated that any partial defense would come unraveled, and settled from the outset on a stance of total denial. This is why he has told lie after lie after lie.
But now Kavanaugh is caught in those lies. He is worried that two Republicans senators might decide they’d rather vote for a justice who hasn’t flagrantly perjured himself. And this fear has legitimate basis.
Jeff Flake Says Brett Kavanaugh’s Nomination Is ‘Over’ If He Lied to the Senate. So What Are We Still Doing Here?
FBI interviews accuser; Yale friend remembers heavy drinker
And those were the good old days. President Trump’s decision to order a one-week investigation into sexual assault allegations against Brett Kavanaugh, his Supreme Court nominee, comes in a time of almost indescribable pain and anger, lies and attacks.
We live in a world where the president routinely attacks the F.B.I. because he fears its work. He calls for his enemies to be prosecuted and his friends freed. We also live in a world where a sitting federal judge channels the president by shouting attacks at the Senate committee considering his nomination and demanding to know if a respected senator has ever passed out from drinking. We live in a world where the president is an accused serial abuser of women, who was caught on tape bragging about his ability to assault women and now likens the accusations against his nominee to the many “false” accusations against him.
Most disturbingly, we live in a world where millions of Republicans and their representatives think nearly everything in the previous paragraph is O.K.
In that world, the F.B.I. is now being asked to investigate, on a seven-day clock, sexual assaults that the president says never happened, that some senators have decried as a sham cooked up to derail a Supreme Court nominee, and that other senators believe beyond all doubt were committed by the nominee.
If truth were the only goal, there would be no clock, and the investigation wouldn’t have been sought after the Senate Judiciary Committee already endorsed the nominee. Instead, it seems that the Republican goal is to be able to say there was an investigation and it didn’t change their view, while the Democrats hope for incriminating evidence to derail the nominee.
Although the process is deeply flawed, and apparently designed to thwart the fact-gathering process, the F.B.I. is up for this. It’s not as hard as Republicans hope it will be.
F.B.I. agents are experts at interviewing people and quickly dispatching leads to their colleagues around the world to follow with additional interviews. Unless limited in some way by the Trump administration, they can speak to scores of people in a few days, if necessary.
They will confront people with testimony and other accounts, testing them and pushing them in a professional way. Agents have much better nonsense detectors than partisans, because they aren’t starting with a conclusion.
Yes, the alleged incident occurred 36 years ago. But F.B.I. agents know time has very little to do with memory. They know every married person remembers the weather on their wedding day, no matter how long ago. Significance drives memory. They also know that little lies point to bigger lies. They know that obvious lies by the nominee about the meaning of words in a yearbook are a flashing signal to dig deeper.
Once they start interviewing, every witness knows the consequences. It is one thing to have your lawyer submit a statement on your behalf. It is a very different thing to sit across from two F.B.I. special agents and answer their relentless questions. Of course, the bureau won’t have subpoena power, only the ability to knock on doors and ask questions. But most people will speak to them. Refusal to do so is its own kind of statement.
Agents will summarize every witness encounter in a detailed report called a 302, and then synthesize all the interviews into an executive summary for the White House. Although the F.B.I. won’t reach conclusions, their granular factual presentation will spotlight the areas of conflict and allow decision makers to reach their own conclusions.
It is idiotic to put a shot clock on the F.B.I. But it is better to give professionals seven days to find facts than have no professional investigation at all. When the week is up, one team (and maybe both) will be angry at the F.B.I. The president will condemn the bureau for being a corrupt nest of Clinton-lovers if they turn up bad facts. Maybe Democrats will similarly condemn agents as Trumpists if they don’t. As strange as it sounds, there is freedom in being totally screwed. Agents can just do their work. Find facts. Speak truth to power.
Despite all the lies and all the attacks, there really are people who just want to figure out what’s true. The F.B.I. is full of them.
James Comey is the former F.B.I. director and author of “A Higher Loyalty: Truth, Lies, and Leadership.”