The White House team began reviewing and tweaking the answers, sending them in batches to Kavanaugh when they were ready for him to review with his signature black Sharpie, sending edits to the clerks for incorporation into the final document. The last questions were on his desk by noon on Tuesday. That night, the White House group, including Talley, Murray, and Michel, returned to chambers, where they found Kavanaugh going over each answer in detail. To keep him from getting bogged down, Talley told the judge that if he divided the time left by the number of questions, he had only about two minutes per response, and that wasn’t allowing time for sleep or even a bathroom break. It was a grueling pace.
Kavanaugh had run marathons before and knew the kind of focus that was needed. He reviewed the answer to every single question, ensuring not only its accuracy—the smallest slip might expose him to a perjury charge—but that it met his high standards. The task of responding to nearly 1,300 questions in two days was abusive, but there was no option but to complete it. The group ordered pizzas and settled in for yet another all-night work session.
When Wednesday arrived, Kavanaugh was still working, and Talley was nervous about getting the final answers. They were starting to roll in late in the day when Raj Shah turned to Talley and said, “Hey, have you ever heard of The Intercept?” He hadn’t.
The online news publication, which describes itself as “adversarial,” is owned by Pierre Omidyar, the billionaire founder of eBay, and edited by Glenn Greenwald. It gained notoriety in 2013 by publishing documents released by the National Security Agency whistle-blower Edward Snowden.
On the evening of Wednesday, September 12, The Intercept published a report by Ryan Grim that Senator Feinstein possessed a letter from a California constituent that described “an incident involving Kavanaugh and a woman while they were in high school.” Committee Democrats wanted to view the letter, but Feinstein declined. The letter writer was a client of Debra Katz, a lawyer known for representing women who accused powerful men of sexual harassment.4
The Kavanaugh team were so focused on answering the committee’s written questions that they first assumed this was a Democratic ploy to get them off track. And in any case, unsubstantiated allegations were a regular part of the confirmation process. Some members of the team recalled a rumor they had heard from a source close to liberal activists about a three-part plan to prevent Kavanaugh’s confirmation. First, someone would accuse him of sexual misconduct. Second, someone would accuse him of knowing something specific about Judge Kozinski’s sexual misdeeds. Third, someone would accuse him of improprieties with students at Georgetown Law School, where he had taught constitutional interpretation in 2007.
No one wanted to bother Kavanaugh with the Intercept story because of the importance of finishing the questions. Besides, the screening process had already included sensitive questions about any episodes that needed to be addressed. With nothing more to go on than “incident,” “high school,” and “California woman,” there wasn’t anything to ask about. Still, McGahn called to check in. Kavanaugh was confident it was nothing to worry about.
At eight o’clock, the team emailed the answers to the 1,287 questions to the committee and headed to the Justice Department to celebrate. It felt as if they had cleared the last major hurdle.
At ten o’clock the next morning, September 13, the Judiciary Committee held an executive business meeting. Rumors had been circulating that Democrats might try again to delay the procedure, and Republican staff members were preparing for the possibility that Democrats would try to prevent a quorum by simply not showing up.
They did show up, and Chairman Grassley immediately held over the nomination of Kavanaugh. Any member of the committee can issue a “hold” on a nomination for a week. It happens so regularly that it is built into the schedule. So as he gaveled the meeting to order and noted a quorum, Grassley announced that he himself was holding the nomination over, a procedure known as “burning the hold.” He was interrupted by Senator Blumenthal, who moved to adjourn on the grounds that they needed more time, documents, and—curiously—witnesses before Kavanaugh could be confirmed.
Even though all the Democrats planned to vote against confirmation, they spent much of the meeting in parliamentary maneuvers to prevent the committee from setting a time to vote on sending the nomination to the full Senate. Their efforts failed, and a vote was scheduled for September 20.5
As soon as the meeting adjourned, Feinstein and a staff member pulled Grassley and one of his staffers into the small lavatory off the committee’s anteroom and closed the door. In that awkward setting she told him for the first time about the letter that had been in her possession since July 30. She wouldn’t show it to him.
News about the letter spread rapidly. BuzzFeed, confirming the Intercept story, reported that the Democrats on the Senate Judiciary Committee had huddled in a room off of the Senate floor the previous night to press Feinstein to do something with the letter.6 She had briefed them on its contents but had kept it hidden from the Republicans. Debra Katz, conveniently enough, had been on the Hill on Wednesday to testify before the Bipartisan Women’s Caucus on workplace sexual harassment.7 Reporters spotted her leaving the Hill Wednesday night.
Feinstein confirmed the reports on Thursday afternoon, saying, “I have received information from an individual concerning the nomination of Brett Kavanaugh to the Supreme Court. That individual strongly requested confidentiality, declined to come forward or press the matter further, and I have honored that decision. I have, however, referred the matter to federal investigative authorities.”8
Some members of the committee had learned about the letter many days earlier. Senator Dick Durbin later said that he had heard about it from a third senator on the Judiciary Committee around September 8.
Reporters gathered for the hearings peppered the Democrats with questions about the Intercept story, but oddly enough, none of the senators responded. Not even Richard Blumenthal, who was known to deliberately walk past reporters two or three times hoping to attract an interview. After all his bluster during the meeting, he didn’t even offer a perfunctory comment about the need for a delay.
A special division of the FBI, separate from the criminal investigation branch, conducts background checks on presidential nominees, looking for anything that suggests they are unsuitable for a position of trust. Acquaintances of the nominee are interviewed about whether he has used drugs, is susceptible to blackmail, or has sought to overthrow the U.S. government, and they are asked to suggest other persons whom agents might interview. The Trump White House followed the same procedure for FBI background checks that the Obama administration followed, in which the reports are given directly to the president, not the FBI or the Department of Justice.
Senator Feinstein had given the letter to the FBI on Wednesday night, redacting the name of the writer, who had requested anonymity.9 Following the normal procedure, agents placed it in Kavanaugh’s background file without evaluating it. The White House received the redacted letter by noon on Thursday and sent it back to the Judiciary Committee, where only the senators on the committee and a total of six staffers were permitted to read it. This was the first time most Republicans on the committee learned about the allegations. All information in nominees’ background files is strictly protected, as if it were classified information. The White House, therefore, was gagged from talking about the letter.