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What Brett Kavanaugh Is Getting Away With

Even with an FBI investigation, Republicans have no intention of getting to the bottom of the assault allegations against him.

SAUL LOEB/AFP/Getty Images

Give this to Jeff Flake: When it comes to infuriating people, he’s truly bipartisan. His denunciations of President Donald Trump have been too pointed for many on the right, and too feeble for those on the left. His eleventh-hour intervention in Brett Kavanaugh’s Supreme Court nomination—in which he asked for an FBI investigation into sexual assault allegations that would delay a confirmation vote for a week—drove just about everybody crazy, with the possible exception of Flake and his fellow undecideds, Republicans Susan Collins and Lisa Murkowski and Democrat Joe Manchin.

On the right, the delay was treated as a shameful capitulation to Democratic demands that were never brought in good faith. In an editorial, National Review portrayed Flake as a dope whose actions damaged the long-held dream of a conservative Supreme Court majority. On the left, there were suspicions that Flake had laid a trap, given the limits on the investigation: only one week in duration, with the White House in control of who the FBI could interview. The probe is unlikely to reveal any new information, but it would give cover to Republican senators like Flake who are inclined to vote for Kavanaugh but have bowed to public pressure following the riveting testimony of his accuser Christine Blasey Ford.

Those suspicions were bolstered when it was reported that the White House had told the FBI that it could interview only four people and that sensitive topics, including Kavanaugh’s drinking, should be excluded. After fierce criticism, the White House relented. On Monday afternoon, The New York Times reported that the FBI had been given direction to interview anybody it felt was important to the inquiry. But even with this added authority, the FBI investigation has all the makings of a fig leaf for Republicans to get on with Kavanaugh’s nomination, while leaving the crucial question of his guilt or innocence determinedly unresolved.

This was evident from the beginning. Democrats had demanded the investigation not only to get closer to the bottom of the matter, but also to highlight Kavanaugh’s very conspicuous attempts to sweep it all under the rug. If he is innocent, the thinking went, why is he so reluctant to launch an investigation that could potentially clear his name? But the White House only conceded to the bare minimum. The FBI initially decided that it would only interview Mark Judge, who was allegedly in the room where Kavanaugh allegedly assaulted Ford; P.J. Smyth, who was allegedly at the party where the assault occurred; Ford’s high school friend Leland Keyser, who was also allegedly at the party; and Deborah Ramirez, who accused Kavanaugh of sexual misconduct while both were at Yale. There would be nothing close to a comprehensive survey of Kavanaugh’s behavior when he was a young man.

Even in its expanded form, it’s unlikely that the FBI’s report will shed much new light on what happened. We already know, for instance, that Judge has written extensively about his high school exploits with Kavanaugh and his own issues with alcohol. We know that Keyser does not recall attending that particular party, though she does believe Ford’s story. Republicans have boiled the whole matter down to a “he said-she said” dispute, and are apparently content to leave it that way. An FBI report—even one that includes statements from Judge—will likely be a more official version of Thursday’s dramatic hearings.

Heading into a confirmation vote, the greatest concern of Republicans, including Flake, does not seem to be whether Kavanaugh assaulted Ford and possibly others. Instead, they are concerned that the allegations and the way they were handled have compromised Kavanaugh irreparably. This investigation is best understood as a means to add some integrity to a process and a judge that have it in short supply.

For Democrats, they have an extra week to continue to hammer a historically unpopular Supreme Court nominee, whose bizarre, wailing testimony on Thursday was full of partisan attacks and lies that have since been brought under the microscope.

Still, the investigation will likely only hold up Kavanaugh’s nomination for a week. The Republican fence-sitters seem inclined to vote for the judge if the FBI doesn’t turn up any new information. Democrats can hold out hope that new, corroborating evidence will emerge about the assault. But their best hope is to continue attacking Kavanaugh and hope that the public outcry can turn Flake, Collins, Murkowski, and Manchin against him. There is only so much they can do when the other party has gone full Trump in its tactics: deny at every opportunity, without really caring if people believe you or not.