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This Is Not the Last Kavanaugh Report

The Republicans didn't pursue the truth about the allegations against the nominee. The Democrats will.

Chip Somodevilla/Getty Images

Iowa Senator Chuck Grassley summed up the FBI’s reopened background investigation into Supreme Court nominee Brett Kavanaugh in a single sentence on Thursday: “There’s nothing in it that we didn’t already know.” The American public has no way of knowing this, as the bureau’s completed report is a closely guarded secret; only senators and a handful of key staffers are being allowed to review it. But there’s no reason to doubt Grassley’s description. Knowing nothing was the goal.

The investigation wasn’t meant to uncover anything new. Republican Senator Jeff Flake, who struck the compromise to reopen the investigation last week after being confronted on Capitol Hill by survivors of sexual assault, only demanded an extra week for the FBI. The White House, which had to approve the reopening, initially imposed strict conditions on who could be interviewed by FBI agents. White House officials relaxed those constraints after moderate senators raised concerns, but did not drop them entirely.

As the FBI probe wrapped up on Wednesday, it became clear that the constraints worked. NBC News reported that more than 40 people with potentially relevant information had not been interviewed by FBI agents, including dozens who reached out to the bureau’s field offices. Two of the most conspicuous absences from the FBI’s interview list were Ford and Kavanaugh themselves. According to The Washington Post, the White House forbade the FBI from looking into whether Kavanaugh may have lied to the Senate about his college drinking habits.

The ultimate result is an investigation that will leave questions unanswered, witnesses unquestioned, testimony ungiven, and stones unturned. A thorough FBI inquiry was never likely to provide conclusive or definitive evidence about the alleged sexual assaults, thanks to the years that have since passed. But it could have filled the gaps in evidence and testimony caused by the haste to wrap up the confirmation process. That chance is now lost. As a result, Republicans have given Democrats all the justification they need to investigate Kavanaugh themselves if they retake the House of Representatives this fall.

A key House Democrat has already raised this possibility. “If he is on the Supreme Court, and the Senate hasn’t investigated, then the House will have to,” New York Representative Jerrold Nadler told ABC News on Sunday. “We would have to investigate any credible allegations of perjury and other things that haven’t been properly looked into before.”

Nadler’s words carry more weight than most: As the House Judiciary Committee’s current ranking member, he’s all but guaranteed to become its chairman under a Democratic majority. The committee is traditionally responsible for handling articles of impeachment in the House. Now that the half-hearted nature of the FBI inquiry is apparent, his case for investigating Kavanaugh is even stronger. House Democrats could bring witnesses before the committee, subpoena documents and other records, and hold public hearings into the allegations.

Republicans wouldn’t have a leg to stand on if they criticize a deeper inquiry into Kavanaugh’s behavior. Democrats spent weeks calling for the FBI’s background-check process to be reopened due to allegations against Kavanaugh. After Flake forced the White House to reopen it last week, Republicans took a different approach. The goal clearly wasn’t to find the truth, or even the nearest approximation to it, but to construct a simulacrum of that truth: to gather testimony from a selective group of witnesses, stitch it together with the FBI’s institutional credibility, and mask its obvious flaws with incredible secrecy. In doing so, they manufactured political cover for wavering Republican senators like Flake, Susan Collins, and Lisa Murkowski, and for red-state Democrats like Joe Manchin and Heidi Heitkamp.

Plausible deniability has been the dominant theme of Kavanaugh’s confirmation process. From the start, Republicans have offered a selective, incomplete, and potentially misleading picture of Trump’s Supreme Court nominee. Instead of relying on the National Archives, the committee turned to a partisan review process to release only a portion of Kavanaugh’s voluminous White House records. The Trump administration also shielded 100,000 pages from public release by invoking executive privilege. Democratic senators raised concerns that the process gave Kavanaugh the opportunity to mislead the committee about his role in Bush-era scandals.

When the FBI report finally came out on Thursday, Republicans made it basically impossible for senators to read and digest. They placed a single classified copy in a secure room on Capitol Hill for only the senators and a handful of staffers to read, then set the first of two votes on Kavanaugh for the following day. It’s hard to imagine a better encapsulation of the extraordinary bad faith that Republicans have shown during the confirmation process. They got the veneer of legitimate inquiry without the risk of actually finding something.

Despite the evident gaps in the background check, key senators quickly praised the report. “It appears to be a very thorough investigation,” Collins told reporters on Capitol Hill after perusing the copy on Thursday morning, adding that she would read through the actual interviews later in the day. “We’ve seen no additional corroborating information,” Flake said after his turn in the Senate chamber where the sole copy of the report sits. Flake’s conclusion is unsurprising—and the product of his own choices. After all, you can’t see what you weren’t trying to find in the first place.