Politics

How the FBI’s Kavanaugh Report Could Become Public

It wouldn’t necessarily have to leak. There’s a gambit for daring Democrats to consider, too.

Sens. Cornyn, Graham, Hatch, and Grassley.
Senate Judiciary Committee members John Cornyn, Lindsey Graham, Orrin Hatch, and Charles Grassley during the Kavanaugh hearing on Sept. 27 in Washington. Win McNamee/Getty Images

The FBI’s supplemental background investigation into Brett Kavanaugh’s alleged sexual misconduct is due to drop any minute, and the question is: Who will be able to read all the hot 1982 Georgetown Prep gossip that the feds were (or weren’t) able to secure?

The good news is you will be able to. The bad news is that for now, “you” only applies if “you” are a sitting United States senator.

Senate Majority Leader Mitch McConnell declared Tuesday that the report would be kept confidential to senators’ eyes only, as is practice, and Judiciary Committee Chairman Chuck Grassley concurred on Wednesday.

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“I’ve been reading FBI reports for 38 years,” Grassley said. “I don’t know that one’s ever been made public.”

Both he and McConnell are correct that protocol calls for background check results to be kept confidential. But some senators said this week that the extraordinary importance of this background check should merit some sort of redacted release. Obviously, this is what most Democrats are saying—but some Republicans believe it, too.

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“Normally it’s not [made public] out of the privacy of the person being investigated, but this is an unusual circumstance,” GOP Louisiana Sen. John Kennedy told reporters Wednesday. “The American people will figure this out for themselves if they have the results of the investigation.”

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Tennessee Sen. Bob Corker at least hoped that reporters would be able to take a look at it, a position reporters overwhelmingly support. If not, Corker said on Tuesday, “I’m afraid it’s going to be selectively leaked out, and each side will use the piece that works best for them.”

I asked Kennedy on Tuesday, though, if he would push McConnell to make the report public.

“That’s above my pay grade,” he said. “I will encourage him, but that’s not my call.” It could be Kennedy’s call if he and one other Republican senator refused to support Kavanaugh until the FBI report was made public, but one shouldn’t expect such aggressive tactics from Louisiana’s junior senator.

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Instead, per McConnell’s second-in-command, Texas Sen. John Cornyn, Republicans might allow some sort of “public statement” or “summary” of the allegations to come forth. But he doesn’t want that because it will appease Democrats. He wants it because he believes it will publicly clear Kavanaugh’s name.

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“I hope that some conclusion, or some summary, will be made public,” Cornyn told reporters Wednesday, “because I hate to see Judge Kavanaugh subjected to these allegations in public … and not see the vindication, if that’s in fact what we see.”

If the FBI report is kept confidential to senators, but some sort of summary is released to the masses, the next procedural dispute—actually, this one’s already started—will be over who writes the summary. Will it be a neutral party, or will it be the majority staff of the Judiciary Committee? And if it’s a neutral party, how is “neutral” properly defined? Is anyone truly neutral?

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God help us. It would be a lot more fun if some Democrat just inserted the report into the Congressional Record by reading it on the Senate floor. I asked a few Judiciary Committee Democrats if they would consider it.

“I don’t know,” Hawaii Sen. Mazie Hirono told me. Until they reach that bridge, she said, she would be pushing for the majority to be as transparent as possible.

“I’m not going to speculate, before we have the report, on what will be done with it,” Connecticut Sen. Richard Blumenthal said. Another reporter asked if the idea of reading it into the record had come up. Blumenthal paused for several seconds.

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“Has the—I’m not going to comment on ideas that may come up,” he said.

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I tried to ask New Jersey Sen. Cory Booker, but like most Senate Democrats considering a run for president, he is guarded by staffers and walks fast, with long strides, to escape spontaneous interactions with reporters.

California Sen. Dianne Feinstein, the ranking member of the Judiciary Committee, does not walk fast. And she seemed uncomfortable with the idea of reading the report into the record.

“Well, I have to find out what the status of it is,” she said. “If it’s confidential, no.”

The logistics of leaking the report, even if a senator is committed to performing this feat of derring-do, would be difficult. Only one physical copy of the supplemental report will be transmitted to the Capitol, and the Judiciary Committee will keep it in a safe. Only 100 senators and a handful of staffers will have access to it. It would be useful for a Democratic senator intent on leaking to secure a pair of contact-lens scanners, of the sort that Tom Cruise might use in the Mission: Impossible series.

Nevertheless, it’s tough to think the report won’t get out somehow. Not to mix up movie metaphors too badly, but when it comes to information that just demands to be released, life finds a way.

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