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The Senate’s ultra-secretive process for reviewing the Kavanaugh FBI report, explained

It’s being treated like a state secret.

Dr. Christine Blasey Ford And Supreme Court Nominee Brett Kavanaugh Testify To Senate Judiciary Committee Matt McClain-Pool/Getty Images
Li Zhou is a politics reporter at Vox, where she covers Congress and elections. Previously, she was a tech policy reporter at Politico and an editorial fellow at the Atlantic.

The FBI’s report on sexual misconduct allegations against Supreme Court nominee Brett Kavanaugh has been received by the Senate, Judiciary Chair Chuck Grassley confirmed early Thursday morning. And now it’s under some of the strictest security Congress has to offer.

Lawmakers and a few high-level staff will have an opportunity to review the document — of which there is only one physical copy — in a secure location and ultimately decide whether they think it offers any corroborating evidence that could sway their votes on Kavanaugh. Whatever the FBI uncovered about the sexual assault allegations from Palo Alto University professor Christine Blasey Ford, it’s being treated like a state secret.

The report consists predominately of summaries of interviews that the agency has conducted with key witnesses related to the allegations, lawmakers have said. While speaking on CNN on Thursday morning, White House spokesperson Raj Shah says the FBI spoke with nine witnesses total. It remains unclear if any portions will be made fully public.

The FBI investigation examined sexual misconduct allegations brought against Kavanaugh by multiple women including Ford and Kavanaugh’s former Yale classmate Deborah Ramirez. Kavanaugh has unequivocally denied all allegations, even as media reports in the last week have suggested he has been at the very least less than honest about his drinking as a student.

A copy of the report was sent to the White House on Wednesday, and members of the administration have already concluded that it does not provide corroborating evidence for Ford or Ramirez’s claims, according to a Wall Street Journal report. The file was subsequently transmitted to the Senate, where lawmakers will have to make their own analyses of the information that’s presented.

Now that the Senate has the report, it has a very specific and guarded process to enable lawmakers to view it. This process — which concerns how the Senate handles particular executive branch documents — was agreed to in 2009 between then-Judiciary Chair Patrick Leahy and President Barack Obama, Grassley noted.

Throughout the course of Thursday, lawmakers will have the chance to read the report in what’s known as a Sensitive Compartmented Information Facility, also known as an SCIF, or a secure area of the Capitol.

While Democrats have been pushing for an FBI investigation ever since Ford came forward a few weeks ago, Republicans resisted such calls until last week when Sen. Jeff Flake (R-AZ) — a pivotal swing senator — urged a delay in a floor vote on Kavanaugh’s nomination in order to conduct one. At the time, Flake argued that the FBI should have up to, but no more, than one week in order to look into the sexual misconduct allegations.

Senate Majority Leader Mitch McConnell agreed to hold off on an important procedural vote for Kavanaugh until the report had been completed. That vote is now set to take place on Friday.

What the process will look like

Senators and a select group of 10 staffers will have the opportunity to review the report in a SCIF that’s been set up in the Capitol Visitor’s Center, the Washington Post reports. An SCIF is a designated area that’s been established for lawmakers to review classified information. Other well-know SCIFs including the Situation Room in the White House and hotel rooms when the president is on the road, for example.

Since this report is technically part of Kavanaugh’s FBI background check, it’s a file that would typically be confidential.

As a tweet from the Daily Beast’s Andrew Desiderio indicates, the SCIF looks like pretty much any other room from the outside.

The review of the report will alternate between Republicans and Democrats in the course of the day, the Post notes:

The two parties will take turns having access to the FBI report in shifts, according to a senior Senate official. For example, Republicans will spend an hour with the report from 8 a.m. until 9 a.m. Thursday, then Democrats will have an hour with the report. It will rotate throughout the rest of the day Thursday and potentially into Friday, with staff members simultaneously briefing senators.

Senate Minority Leader Chuck Schumer had asked for a briefing on the report from FBI agents, but McConnell suggested that such an effort would go up against the previous agreement.

Democrats have expressed concerns about the tight timeframe Senators are now on to review the report given the procedural vote on Friday, something McConnell made the case for in a floor speech on Wednesday night. “There will be plenty of time for members to review and be briefed on the supplemental material,” he said.

Who the FBI did — and didn’t — interview

Based on statements from their respective attorneys and broader media reports, the FBI has talked to a few people relevant to the investigation.

Mark Judge: Ford, a Palo Alto University professor, has accused Kavanaugh of sexually assaulting her while they were both in high school. (Kavanaugh has denied this, along with the sexual misconduct allegations against him by Ramirez and Julie Swetnick.)

Ford said that Judge was in the room at the time of the assault. Judge has said he has no recollection of the event and that he’s never seen Kavanaugh behave in this way.

Swetnick has said that Judge was present at parties where he and Kavanaugh would spike drinks so that women could be “gang raped.” Judge has denied these allegations as well.

In addition to having been implicated in accusations by two women, Judge is seen as someone who could provide crucial background about both the culture of Georgetown Prep and Kavanaugh’s drinking habits in high school. Judge has since written a memoir about his own struggles with alcoholism that includes a character named Bart O’Kavanaugh, who passes out after drinking too much at a party.

Patrick Smyth: Smyth is another Georgetown Prep classmate who Ford has said was present at the gathering where she was allegedly assaulted. Smyth has said he has no knowledge of the party in question and no information about the allegations that have been levied against Kavanaugh.

Leland Keyser: Keyser is a friend of Ford’s who she has also named as someone who was at the gathering where the assault allegedly took place. Keyser has said that she does not know Kavanaugh and has no recollection of being at a party where he was present. She has also said, however, that she believes Ford’s account of the assault.

Tim Gaudette: Gaudette is someone Kavanaugh signaled was a friend and classmate from Georgetown Prep. In a July 1, 1982, entry on Kavanaugh’s detailed high school calendars, he lists going to “Timmy’s for skis with Judge, Tom, P.J. Bernie and ... Squi.” “Timmy,” in this case, is referencing Gaudette.

Additionally, during a Senate Judiciary Committee meeting last week, Sen. Sheldon Whitehouse (D-RI) noted that there were some similarities between that July 1 calendar entry and the gathering where Ford says she was assaulted — namely, that a few of the same people were in attendance. Whitehouse had urged the FBI to look into this possible connection.

Chris Garrett: Garrett is another friend and classmate of Kavanaugh’s who was purportedly in attendance at a July 1, 1982, gathering of friends. He also previously went out with Ford and is listed in the calendar entry by his nickname, “Squi.”

Deborah Ramirez: Ramirez has accused Kavanaugh of exposing himself to her while the two were in college, an allegation he has denied. She spoke with FBI agents for about two hours this past weekend, according to her attorney John Clune. Clune has said that she also provided more than 20 names of people who could corroborate her account, though he expressed concerns that the FBI had not yet contacted any of them as of Tuesday evening.

“It was a detailed and productive interview, and the agents were clearly motivated to investigate the matter in any way they were permitted,” Clune wrote in a tweet on Tuesday.

Notably, however, neither Ford nor Kavanaugh were interviewed as part of the investigation.

The White House has begun drawing conclusions — and now it’s down to what lawmakers think

According to the WSJ, the White House has already made up its mind about the contents of the FBI report and whether they offer corroborating evidence for the allegations against Kavanaugh.

“We believe that all the Senate’s questions have been addressed through this supplemental FBI investigation,” said Shah in his Thursday CNN appearance, where he emphasized that the White House remained “firmly” behind Kavanaugh. The WSJ noted, however, that it was unclear if the White House had finished reviewing the entire report in detail when it made that statement.

The attention shifts to the Senate where everyone will be watching a set of five key swing votes. They include moderate Republican Senators Flake (AZ), Susan Collins (ME) and Lisa Murkowski (AK), as well as red-state Democrats Joe Manchin (WV) and Heidi Heitkamp (ND).

Because of Republicans’ razor-thin 51-49 majority in the Senate, a final vote on Kavanaugh will rest on what these Senators ultimately make of the report — and whether its findings have any bearing on where they stand on his nomination.

As of now, there are still three potential paths forward.

First, it’s possible that senators believe that investigators have found corroboration of allegations brought by Ford or Ramirez — even though the White House disagrees. That would put the onus on Flake, Collins, and Murkowski to decide what to do. Other Republicans have said they remain unsure about how the report could affect their stance on Kavanaugh.

In this case, it’s possible McConnell would call their bluff and put the nomination on the floor, risking the very public embarrassment of having the Republicans’ Supreme Court nominee defeated with the world watching. But it’s also possible he would delay the vote or, in the most extreme case, urge that the White House pull the nominee altogether.

Second, it’s possible lawmakers see the FBI investigation as offering no new information. As we’ve already seen, many of the objections from Democrats and moderate Republicans have been about the process. With no new substantive information emerging, the skeptical Republican senators could say they are satisfied with the supplemental review. After reaching this conclusion, they could side with Kavanaugh and advance his confirmation.

Third, even with no new information, the undecided Republicans — particularly Collins and Murkowski — could feel the weight of the “believe women” advocacy that has reached a fever pitch. They could get cold feet and either vote down Kavanaugh or pressure McConnell to withdraw the nomination. (The conservative movement already has several alternative candidates waiting in the wings.)

Any of these would be a dramatic end to an already dramatic Supreme Court confirmation process. And any of these remain possible in the coming days, as Kavanaugh, the least popular Supreme Court nominee in recent memory, awaits his fate.