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What the Investigation Means


This is a useful primer:

The renewed F.B.I. background check of Judge Brett M. Kavanaugh over allegations of sexual assault will be relatively limited, relying on voluntary interviews and document production.

Former prosecutors said that because it is not a criminal investigation, F.B.I. agents will not be able to get search warrants or grand jury subpoenas compelling witnesses to testify or hand over documents. Witnesses and others can refuse to cooperate, though talking to an F.B.I. agent is often a powerful motivator to tell the truth.

At a Senate hearing on Thursday, Judge Kavanaugh forcefully denied accusations of sexual misconduct. One of his accusers, Christine Blasey Ford, told senators that he drunkenly pinned her on a bed during a party on a summer night in 1982, tried to take off her bathing suit and covered her mouth to keep her from screaming.

Republicans have said for days that an additional F.B.I. background check was unnecessary but reversed course on Friday after Senator Jeff Flake, Republican of Arizona, said he would not vote to confirm Judge Kavanaugh without one. With a closely divided Senate, Republicans had little choice, and President Trump ordered the background check.

It’s very unlikely that an investigation this limited in scope will reveal evidence that will change anyone’s mind. I think this is the way to look at it:

There are a couple related things:

  • The extra time creates the responsibility that a journalist will find something more. This doesn’t necessarily guarantee anything; if anything the second and third accusers seemed to consolidate Republican support around Kavanaugh, and in particular Avenatti — did any Republican on the Judiciary Committee fail to mention that he’s a PORN STAR lawyer? — would have to produce something absolutely bulletproof to move the needle among Republicans. But the possibility of something really damaging exists.
  • My read on Manchin’s maneuvering yesterday is that he’s more likely that not to vote to confirm if McConnell already has the votes, but he’s not going to be #50. Donnelly’s already out. Collins’s performance all along, conversely, suggests to me that she’ll jump ship if McConnell can’t produce the other 49 but otherwise will roll. Murkowski seems more skeptical and will probably get the golden ticket if McConnell has one to give. So a lot of this really comes down to Flake.  His history suggests that if the investigation doesn’t come up with a VHS tape of the assault or something he’ll pronounce the investigation good enough and vote to confirm. But there’s the possibility that, like his fellow Arizonan last year, he might be interested in doing the One Mavericky Thing on his way out. The smart money is on the former, but we just don’t know. And I do think that how the party’s voters react will matter to him.
  • The other Flake lesson: sometimes activism works. Don’t give up until it’s lost.
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