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Kavanaugh Column, News

“Hello, Is this the FBI?… Hello? Hello?”

This afternoon, the Senate Judiciary Committee voted to refer Judge Brett Kavanaugh’s nomination to the U.S. Supreme Court to the full Senate. As expected, the vote was 11-10 along party lines, with all Senate Republicans backing Kavanaugh and all Democrats voting against him. All eyes are now on an expected vote by the full Senate this Tuesday, October 2nd.

The only moment of drama came at the start of the hearing when Chairman Charles Grassley (R-IA) invoked a “personal privilege” and called upon Arizona Republican Jeff Flake, who is retiring from the Senate, to make a statement. Flake stated that he was prepared to vote for Judge Kavanaugh – but that his vote was on the understanding that the full Senate vote would be pushed back for a week to “allow the FBI to investigate” the allegations against Kavanaugh. Some confusion ensued, with Democratic Ranking Member Dianne Feinstein (D-CA) suggesting that there was an “agreement” of some kind to that effect. Grassley (and Flake) reminded all present that the Judiciary Committee has no authority over the scheduling of that vote – only the Majority Leader, Mitch McConnell (R-KY), does. The vote was quickly taken, and it appeared that the Chairman and Senate Republicans were eager to finish their work and leave to others the question of a delay on the vote and an FBI investigation.

The question of an FBI investigation is multi-layered. First, the FBI has already stated that it does not intend to investigate the new allegations by Dr. Ford. Second, no one in the committee room has the power to force the FBI to investigate anything. Arguably, the President has the power to order the FBI, a subordinate executive agency, to investigate the matter, as would Attorney General Jeff Sessions (a former Republican senator himself). But the President has reportedly said he would “let the Senate handle that.” And Attorney General Sessions has already recused himself from the Special Counsel’s investigation into alleged Russian meddling in U.S. elections, suggesting he has no desire to inject himself in political controversies. Moreover, it is more than a little ironic that many of the President’s political opponents who have condemned what they regard as his interference with the Special Counsel (with echoes of the “Saturday Night Massacre” of Watergate fame) are now calling on him to force the FBI to launch an investigation.

The best result in this whole unfortunate affair would be for Deputy Attorney General Rod Rosenstein or FBI Director Christopher Wray to announce over the weekend that the FBI has already concluded its investigation and will take no further action. That would give Leader McConnell political cover to call for the vote on Tuesday, and waffling senators like Jeff Flake cover from the political storm that has broken over their heads.