Sep. 29



New Senate: DEM 49             GOP 51

New polls:  
Dem pickups: AZ
GOP pickups: ND

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Flake Demands--and Gets--FBI Investigation into Kavanaugh Allegations

Sen. Jeff Flake (R-AZ) may be leaving the Senate in January, but he is certainly going with a bang, not a whimper. Early yesterday he said that he was a "yes" vote to advance Brett Kavanaugh from the Judiciary Committee, which allowed the Committee to send Kavanaugh's nomination to the Senate floor with a recommendation to approve him. The vote was along party lines, Republicans were all smiles and were happy Flake was a team player.

Then the Senator dropped a bombshell: He would not vote for confirmation on the Senate floor unless the FBI investigated the allegations against Kavanaugh. He gave them a week to do it, and said: "This country is being ripped apart here," which is obviously true. Much to the consternation of Majority Leader Mitch McConnell (R-KY), Sen. Lisa Murkowski (R-AK) joined Flake in calling for the investigation, and then Sens Susan Collins (R-ME) and Joe Manchin (D-WV) added their voices to the chorus as well. All the Democrats except Manchin (D-WV) and Heidi Heitkamp (D-ND) are already committed to voting "no," which means Kavanaugh already has 47 thumbs down. If the four senators calling for an investigation join them, then the Judge gets Borked, regardless of what Heitkamp does.

With no other real choice, it didn't take the GOP long to agree to the investigation. Basically, the quartet have them over a barrel. At the hearing on Thursday, Kavanaugh was asked half a dozen times if he was OK with an FBI investigation, and every time he refused to answer the question. Now it is going to happen with or without his approval. He could have garnered a lot of good will on Thursday by simply saying the first time: "Of course I want one. It will clear my good name." But he didn't. Why didn't he want one? We may now find out.

Once it was clear what the situation was, Donald Trump quickly issued the order and made the investigation official. White House Press Secretary Sarah Huckabee Sanders sent this tweet announcing the news:

Statement from President @realDonaldTrump:
“I’ve ordered the FBI to conduct a supplemental investigation to update Judge Kavanaugh’s file. As the Senate has requested, this update must be limited in scope and completed in less than one week.”

— Sarah Sanders (@PressSec) September 28, 2018

No doubt Trump will try to get FBI Director Christopher Wray to do the job as quickly and superficially as possible, but Wray may or may not play along. If he whitewashes the whole affair and it later comes out that he missed important matters, he and the Bureau will look partisan, something he surely wants to avoid. But even if Wray can run the investigation on its own terms, there are many important and difficult decisions to be made. One of the key ones is whom to interview. First on the list is Mark Judge, who Ford says was in the room when the alleged assault took place. His lawyer has already issued a statement on his behalf that says that nothing happened. That statement, which was unsigned by Judge, ultimately means very little, and would not be admissible in a court of law. Whether Judge is willing to say the same to the FBI when he's under oath, and at risk of committing perjury, is another matter. He may figure it is two against one, so why not? On the other hand, Kavanaugh has said enough stuff that is potentially falsifiable that Judge may conclude that it's now every man for himself. Whatever his plan is, he's already agreed to cooperate with the Bureau.

Other possible interview candidates are Debbie Ramirez and Julie Swetnick, who have also accused Kavanaugh of sexual misdeeds. Then there are many classmates of Kavanaugh, who could be character witnesses for or against him. If Wray wants to keep his job, he will have to ask few people and wrap it up fast with no new evidence. If he wants to keep his reputation (and the Bureau's), he could put dozens of agents on the project and interview everyone remotely connected to the matter, even the polygraph operator who did Ford's lie-detector test.

Kavanaugh said on Thursday that the pressure of this whole situation has been brutal for him and his family. If so, they are in for another rough week. There are three different things he needs to be worried about. The first, of course, is if the FBI is somehow able to find evidence corroborating Ford's account. It's a tall order, but not impossible, and the Bureau is very good at what it does, assuming Wray really leans into the task. Besides interviewing Judge, it is likely they will also see if they can narrow down the time and location of the alleged assault. A fairly sizable part of Kavanaugh's defense on Thursday was that there was no available date where the alleged incident could have taken place, with all of the people Ford named in the same place at the same time. If the FBI discovers that, in fact, the assault happened at a time and in a place that Kavanaugh and the other folks could well have been in the vicinity (say, June, down the street from his house, while school was in session), his whole story would take a big hit. One fact that might be findable is when Mark Judge worked for Safeway. The store might still have employment records. Also, presumably the store deducted FICA taxes from his wages. The Social Security Administration has to keep that information until Judge starts collecting Social Security, years from now.

The second thing he needs to be worried about is that even if the FBI cannot validate Ford's account (or any of the others), they may still find evidence that Kavanaugh lied about something else. During the hearings on Thursday, Sen. Richard Blumenthal (D-CT) dropped a little Latin into the proceedings, asking Kavanaugh about the legal principle (often relayed to juries) falsus in uno, falsus in omnibus. It means that when a defendant lies about one thing, it is proper to assume he lied about everything. Over the past few days, Kavanaugh has said a number of things that could plausibly be proven false. For example, fellow students might come forward and say that his explanations for his yearbook inscriptions are simply not true. Or, what if a woman comes forward and says that she had sex with Kavanaugh while they were juniors in high school, and so his "I was a virgin" line was a lie?

And finally, there is a very decent chance that more accusers come out of the woodwork in the next week. It could be that the two folks who were brought to the attention of Sens. Cory Gardner (R-CO) and Sheldon Whitehouse, respectively, and who are currently anonymous, decide to reveal themselves. There could also be new accusers who are not even on the radar.

Assuming things go according to the current plan, the investigation will reach its deadline on Friday of next week. But given how many curveballs this nomination process has already given us, that is far from a slam dunk. Imagine that Wray either goes public, or goes to Sens. Flake, et al., and says "We're following up on half a dozen very solid leads, and we must have more time." Would Flake & Co. really say "nope, too bad"? Would the optics of such a move be palatable to other GOP senators? Clearly, they are willing to go to great lengths to get Kavanaugh seated, but ignoring the FBI when it says it has important leads to follow would be particularly...bold.

What happens after the investigation concludes, whenever it does, obviously depends on what the Bureau finds. If Wray finds anything that seriously bolster's Ford's account, or seriously undermines Kavanaugh's, well, Katie bar the door. (V & Z)

Kavanaugh-Ford Coverage Roundup

Recently, we have been doing a weekly rundown of all the big news in the various Senate contests. There is so much coverage and commentary of Thursday's hearings, and from so many angles, that the same approach is the only way to get to it all. So, here goes:

• Thus far, no national poll has asked whether people believe Christine Blasey Ford or Brett Kavanaugh, but SurveyUSA did do a poll of California. In the Golden State, 60% of adults believe Ford's story vs. 23% who don't. With Kavanaugh, it is the reverse: He is under water, with 35% believing him and 46% not believing him. Among other things, the poll found that confidence in the Supreme Court is slipping. Only 50% have confidence in it, vs. 27% who have no confidence. If Kavanaugh is confirmed, confidence in the Court is likely to drop even more.
  
  
• Meanwhile, another poll, conducted before Thursday's hearings, reveals that 48% of white evangelicals would support the Judge, even if the allegations against him were proven true. Another reminder that these folks have a very unusual understanding of the ministry conducted by one Jesus of Nazareth.
  
  
• There is a veritable cornucopia of articles comparing Ford's demeanor with Kavanaugh's, and not in the Judge's favor (see here, here, here, here, and here for examples). The folks across the pond were particularly critical; for example, The Guardian wrote: "In an era of bile and tribalism, Christine Blasey Ford displayed the calm temperament of a judge while the supreme court nominee lashed out."
  
  
• Seemingly every body language expert in the country was pressed into service by one outlet or another to analyze Ford's and Kavanaugh's presentations. Nearly all were impressed by the former, and few had good things to say about the latter. Perhaps the best of these pieces was the one published by Refinery29.
  
  
• Anita Hill (yes, that one) was also very critical of the Judge's demeanor, observing that no female SCOTUS nominee "would ever have the license to express [herself] in that way." Meanwhile, even Donald Trump (yes, that one) said that Ford was "compelling" and "credible". It seems someone has persuaded him that he simply cannot afford to lose suburban women any worse than he already is.
  
  
• Fox News (sic) is angry that so much of the coverage has portrayed Ford as calm, and Kavanaugh as angry. "These photos are the perfect liberal narrative. You see the calm, law-abiding, liberal accuser and the angry conservative defendant," they write, directing particular ire toward the front page of the New York Times.
  
  
• Also on that note, WIRED has an excellent piece about how left-leaning media and right-leaning media are telling two completely different stories about what happened on Thursday.
  
  
• Another task that became something of a cottage industry on Thursday was dissecting Kavanaugh's testimony for the parts that are implausible or are demonstrably false. See here, here, here, here, here, here, here, here, here, and here for examples.
  
  
• There were many op-eds that made the rather indisputable observation that Thursday's spectacle reflects serious dysfunction in the American democracy. CNN's Stephen Collinson had one of the better pieces on this point. Others argued that Thursday's events reveal the GOP to be a party in crisis. David Faris, writing for The Week had an excellent piece on this theme.
  
  
• Some of Thursday's key senators are getting a lot of attention. Jeff Flake apparently woke up on Friday with a pit in the bottom of his stomach, and then was confronted by some female protesters on the way to work, which may have influenced his decision to demand an investigation.
  
  
• Sen. Ted Cruz (R-TX) was another key player on Thursday. He's supposed to be very smart, but in remarks on Friday, he said that there was no point in calling Mark Judge to testify, since he would just take the Fifth, anyhow. As Slate's Ben Mathis-Lilley points out, that's a tacit admission that there is something worth taking the Fifth about, which runs completely contrary to the GOP's "nothing happened" narrative.
  
  
• Of course, Sen. Lindsey Graham (R-SC) got the most attention of all. He rushed from the hearings to an appearance on Sean Hannity's show (even posting a photo of himself eating Chick-fil-A in the green room, because there wasn't time to eat en route). Graham was, of course, hailed as a conquering hero. CNN's Chris Cillizza doesn't agree with the "hero" part, but he wrote yesterday morning that Graham may have single-handedly saved Kavanaugh with his performance.
  
  
• On the other hand, it is not a good look for Graham that in 24 hours he went from describing the charges against Kavanaugh as a sham and a Democratic plot to embracing the reopening of the FBI investigation.
  
  
• She's not a senator, but prosecutor Rachel Mitchell is also getting a lot of attention. Or, more accurately, Chuck Grassley is the subject of a lot of "what was he thinking" pieces, like this very good one by defense attorney Page Pate. The issue is that Grassley clearly put "sex crimes" and "woman" and "prosecutor" together, and thought he had the ideal person in Mitchell to tote his water. However, as Pate notes, Mitchell behaved exactly as people in her particular line of work do, calmly and methodically trying to clarify the facts of the case, up to and including becoming the victim's advocate. So, it is not at all surprising that there was no "takedown." In fact, those who watched very carefully might have sensed that when she was cut off, Mitchell was getting close to nailing down an actual date for the assault, which would have been very bad for the Judge, indeed.
  
  
• The Democrats are trying to do a little sleuthing of their own, in hopes of giving the FBI an assist. They are zooming in on July 1, 1982 as the likely date on which the assault took place, which is the same date that Mitchell was zeroing in on.
  
  
• The American Bar Association has been leery of Kavanaugh since his first confirmation hearing 12 years ago. The GOP dismissed them as a bunch of liberal hacks, but now people may be listening.
  
  
• The mockery of Kavanaugh & Co. has already begun. There is, for example, this mashup video in which Kavanaugh is "interviewed" by Jules Winnfield from the movie "Pulp Fiction":
  
  
  
  Meanwhile, in view of Donald Trump's observation that even George Washington could not get the approval of Senate Democrats, the Father of His Country has helpfully released his personal calendar, which clearly exonerates him of any wrongdoing:
  
  

  BREAKING: In response to President Trump's allegations, George Washington has released his calendar from the summer of 1749. pic.twitter.com/XpuDYjYWWe

  — The Daily Show (@TheDailyShow) September 26, 2018

  
  "Saturday Night Live" has its season premiere tonight. This situation just might come up once or twice.
  
  
• There was little chance that Ronan Farrow wouldn't add something to the proceedings on Friday. His contribution: A story about how Deborah Ramirez (accuser #2) tried very hard to volunteer testimony, and was rebuffed over and over by staffers in Sen. Chuck Grassley's office, who then edited e-mails to make it look like Ramirez was unwilling and unreachable.
  
  
• Similarly, Michael Avenatti was sure to speak up, one way or another. He doesn't have another accuser in his hip pocket, but he did announce that he's going to enjoy doing everything he can to embarrass Kavanaugh and the GOP next week.
  
  
• On the other hand, outside of the odd tweet here and there, the White House press office has been quiet as a church mouse for the last 48 hours.
  
  
• And finally, liberal advocacy groups are preparing for one last anti-Kavanaugh push, and are ready to spend additional millions to do it.

There you have it. This will certainly be the main story for all of the news cycles into the foreseeable future. Which is, of course, generally bad news for the GOP regardless of what the FBI finds out. (Z & V)

Security Experts: Flaw in Popular Voting Machine Could Tip an Election

Although the Kavanaugh-Ford hearings absolutely dominated coverage on Friday, they weren't the only thing being reported. Among the other stories (most of them, admittedly, relegated to the back pages): A report presented at the Capitol this week shows that a vote-tabulating machine used in 26 states could be hacked to change the election result. The researchers showed how an attacker could exploit numerous flaws in the Model 650 machine made by Election Systems and Software and take over the machine, changing the results. The manufacturer was warned about the vulnerabilities a decade ago and did nothing to fix the problem.

The vulnerabilites are not in a single voting machine but in tabulating machines used to add up the votes for entire counties, meaning much bigger changes could be made than with an individual voting machine that might have been used by at most a few hundred voters. (V)

Steyer to Spend $5 Million for Gillum

While most billionaires are Republicans, the Democrats do have a couple on their team. One is Tom Steyer, who is going to spend $5 million to help elect progressive Talahassee Mayor Andrew Gillum (D) governor of Florida. Gillum is running against Trump-aligned conservative Ron DeSantis (R), so this is a very ideological food fight in a state that is almost exactly balanced in the middle of the political spectrum. The gubernatorial election is hugely important because Florida has 27 congressional seats and is likely to have more after the 2020 census. The Republicans control the state legislature, but with a Democratic governor, they would be forced to draw a fair map. In addition, the governor can help the presidential candidate in 2020 in numerous ways, so this is probably the most important of the 35 gubernatorial races this year. (V)

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