The Kavanaugh Investigation Is a Sham, and Republicans All Know It

On Friday, shortly after announcing his support for embattled Supreme Court nominee Brett Kavanaugh, a somber Jeff Flake changed his mind. Sort of. “I think that we ought to do what we can to make sure we do all due diligence with a nomination this important,” he said, as the committee's other Republicans rolled their eyes in frustration. Flake asked for a supplemental FBI investigation into the sexual assault allegations against Kavanaugh, but with the caveat that it not delay the final confirmation vote for more than one week. The truth is very important to Jeff Flake, unless finding it would take longer than seven days, in which case, says Jeff Flake, what else is there to be done?

By all accounts, the process that ensued has been—and this is a technical term—a bureaucratic clusterfuck of the highest order. The White House quickly moved to limit the scope of the inquiry, excluding from the list of potential witnesses former classmates who could corroborate or debunk some of Kavanaugh's more obvious lies, especially those related to his drinking habits. According to the New Yorker, would-be tipsters found themselves ignored, referred, and eventually lost deep within the bowels of the FBI's automated phone-menu hell.

[A former Yale] classmate said that he was “one-hundred-per-cent certain” that he had heard an account that was practically identical to [Deborah] Ramirez’s, thirty-five years ago, but the two had never spoken about it. He had hoped to convey this to the F.B.I., but, when he reached out to a Bureau official in Washington, D.C., he was told to contact the F.B.I. field office nearest his home. When he tried that, he was referred to a recording. After several attempts to reach a live person at the field office, he finally reached an official who he said had no idea what he was talking about. At this point, he went back to the official at the F.B.I.’s D.C. headquarters, who then referred him, too, to an 800-number tip line. (He eventually left a tip through an online portal.)

Even after Trump, perhaps aware that pre-baking a law enforcement investigation is not a good look, tweeted his desire that investigators interview "whoever they deem appropriate," sources told NBC News that this proclamation had no effect on the Bureau's mandate. And if Flake had objections to any of this, it didn't matter, since the "commitment" he procured from committee chair Chuck Grassley was memorialized only in a "gentlemen's agreement."

[A] White House official made clear that the White House is the client in this process. This is not an FBI criminal investigation—it is a background investigation in which the FBI is acting on behalf of the White House. Procedurally, the White House does not allow the FBI to investigate as it sees fit, the official acknowledged; the White House sets the parameters.

On Monday afternoon, the New York Times reported that under intense pressure from Democrats, the White House had authorized the Bureau to "expand its abbreviated investigation"—for real this time, apparently. Trump attached a "within reason" qualifier to this directive, however, and the original Friday deadline remains in place.

This was always the riskiest possible outcome of Senate Democrats' demands for an FBI investigation: that if it occurred, Kavanaugh's enablers would employ a perfunctory process rigged to turn up as little of substance as possible. Grassley and company did not care whether Brett Kavanaugh lied under oath or committed sexual assault before Jeff Flake began having second thoughts. Why would they care about those things now? To them, this is a simple, straightforward exercise in the provision of political cover, and their only incentive is to do the bare minimum required to get Susan Collins and Lisa Murkowski to vote yes, and to soothe Jeff Flake's guilty conscience enough to allow him to do the same.

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This, of course, would be an acceptable outcome for Flake, who desperately wants to be remembered as a good and decent person, but remains as reluctant as ever to put in the work of doing things that good and decent people do. In a 60 Minutes interview alongside Delaware senator Chris Coons, with whom he negotiated the last-minute delay on Friday, Flake was asked if learning that Kavanaugh lied under oath would torpedo the nomination. He paused, and frowned the sort of frown one uses to convey their earnestness about the subject at hand. "Oh yes," he said.

Call it the coward's paradox: If Kavanaugh lied, Jeff Flake would vote no, but also, he'd might never have the chance to find out. Republicans want this investigation to be a mere performance of justice—one that allows Flake, Collins, and Murkowski to cast votes to confirm, all while telling themselves that they did the right thing.