The man who hit pause on Kavanaugh's confirmation

After issuing a statement saying he would vote to confirm Brett Kavanaugh to the Supreme Court, Sen. Jeff Flake (R-AZ) asked for an FBI investigation.

Posted: Oct 2, 2018 7:54 AM
Updated: Oct 2, 2018 7:54 AM

Welcome to the holding pattern.

There will be no votes. There will likely be limited comments of substance. There will be little in the form of tangible movement for much of this week, as senators wait for the FBI to submit to the White House its supplementary background investigation material on President Donald Trump's Supreme Court nominee Brett Kavanaugh.

That hardly means a truce, however. Democrats are already questioning the legitimacy of an FBI review that is limited in scope. Outside groups are renewing their television ad buys to ramp up pressure on wavering senators.

Bottom line: In talking to Republican officials and aides working on this nomination throughout the weekend, their focus remains firmly on three things and nothing else: Where are GOP Sens. Lisa Murkowski of Alaska, Susan Collins of Maine and Jeff Flake of Arizona?

The week will likely be filled with new allegations or new people coming forward, and these aides are keenly aware that the scope of the FBI's work is becoming a hot button issue.

But at this point, there are zero plans to shift the course laid out on Friday, several senior aides and officials say.

The investigation

The FBI got right to work after they received the official request from the White House and has already reached out to key players related to the allegation from Christine Blasey Ford. They've also reached out to Deborah Ramirez, the second accuser whose allegations were first laid out in The New Yorker.

The third accuser, Julie Swetnick, and her lawyer, Michael Avenatti, have not been contacted yet. There's a reason for that, sources say: they aren't on the list of people to be contacted by the FBI. There's a subtext here, GOP aides say: the senators who helped determine the scope of the FBI's work didn't view the allegation as credible.

Kavanaugh has denied all allegations against him, including those from Ford, Ramirez and Swetnick.

The scope

There was an extreme amount of confusion about what, exactly, the FBI has been asked to review. Tracking back to how this started is worthwhile.

  • This was requested by Flake, in consultation with Collins and Murkowski -- three Republican senators currently undecided on Kavanaugh's nomination.
  • The request, initially laid out in the public Judiciary Committee meeting Friday, was discussed at length in private meeting in Senate Majority Leader Mitch McConnell's office later that afternoon.
  • When McConnell recognized he didn't have the votes to move forward without acceding to their demands, the conversation moved to the scope.
  • White House officials were brought into the conversation, by phone, sources say, as the discussions over what specifically to ask the FBI to review continued.
  • For Collins -- and to some degree Murkowski -- Mark Judge, the Kavanaugh friend identified as present in multiple allegations has been the key missing piece to any thorough review. The scope of the request centered around him -- and other alleged witnesses in Ford's allegation.
  • While Swetnick's allegations have largely been dismissed as not credible by Republicans -- and therefore would not be covered by the request to the FBI -- Judge is identified in them, and the expectation, per sources present, was that if the FBI was interviewing Judge, they could ask about those allegations, as well.
  • The statement released by the Judiciary Committee was drafted, and agreed upon, during that meeting. It noted that the request would be for at most a one-week review, and would be limited to "credible" allegations.
  • As is required, the White House then sent the directive, drafted through the meeting with GOP senators in McConnell's office, to the FBI. That, limited as it is, has been the driving force of the FBI's work to now.

As one GOP official put it to me this weekend: The three undecided GOP senators "drove the scope of this and our goal is to make sure they get what they need to get to yes. Anything outside of that is noise."

Technical point of order

This will become important in the next few days: The White House ordered the FBI to do a supplemental background investigation. When the FBI completes its work, it sends what it has collected back to the White House. The White House then adds that information to the nominee's background file, which is then sent to the Senate. Only then can senators see it, and only senators and a limited number of staff have access to it.

In other words, don't expect some big public report. There will likely be efforts to make the information public, especially by whichever side it helps. But it's not a clean process of public release.

Get ready to hear about this a lot from Republicans: In a five-page memo to Republican senators late Sunday night, Rachel Mitchell, the prosecutor hired by Republicans to ask questions at the hearing last week, says a "reasonable prosecutor" would not bring a case against Kavanaugh based on Ford's sexual assault allegation given the evidence presented to the Judiciary Committee.

Get ready to hear about this a lot from Democrats

Chad Ludington, a Yale classmate of Kavanaugh, accused him Sunday of being untruthful in his testimony to the Senate Judiciary Committee and making a "blatant mischaracterization" of his drinking while in college.

There is going to be a push this week that goes beyond what the FBI is doing -- Democrats are keying in on the entirety of Kavanaugh's fiery and emotional testimony to see if there are holes or problems that could undercut his nomination.

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