The anteroom and corridor were so crowded with dozens of senators and staff members that the door from the hallway could not be opened, and the room became unbearably hot. A few noted with amusement that the senators were crammed into the corridor while the staff sat around the conference table, but the senators kept pairing off and retreating to the corridor for private conversations, displacing the staff who were there. Hatch and his counsel were in the lavatory on the phone with the American Bar Association, trying to sort out the confusion caused by its president’s anti-Kavanaugh letter. Coons had cornered Flake, trying to convince him to demand a supplemental investigation in exchange for voting the nomination out of committee.
In the epic, hours-long fight outside the meeting room, fistfights nearly broke out. One senator told another that he wanted to wring his neck. A staffer who was bringing lunch to her hungry boss found herself in the middle of the scrum, with Ted Cruz inadvertently standing on her foot and Sheldon Whitehouse spraying her with saliva as he debated a colleague. More staffers were huddled in the hallway outside as savvy reporters started to realize where the action was. Every few minutes a senator would suggest clearing the area of staffers, since the fighting between senators was getting so personal, but the configuration of the anteroom and the large number of senators and staff made that impossible. Veteran staffers had never seen anything so chaotic in the Senate.
Republican senators felt that Democratic senators had not been honest, and they were livid that Feinstein had not followed the rules for dealing with anonymous allegations. Nobody admitted leaking to the press, but clearly someone had. According to Ford’s own testimony, only her lawyers and Democratic members of Congress had seen the letter, but her friends also would have known the nature of the allegations. Whoever the leaker was, he or she had ensured that Ford’s claims would be addressed in the most public and sensationalized manner possible, despite Ford’s own stated wishes for privacy and confidentiality.
Even though Feinstein was a staunch liberal, her Republican colleagues trusted her to play by the rules, in contrast to some of the other Democrats on the committee. Some senators and aides believed that the eighty-five-year-old Feinstein’s lucidity declined as the day progressed, an observation others strongly disputed. Either way, the consensus was that her staff took advantage of the situation and used her as a shield while they skirted the rules. The failure to handle the allegation in a timely manner through proper channels had disappointed some undecided senators and made them less likely to take it seriously.
At that moment, Kavanaugh’s future was in the hands of Flake, not Collins or Murkowski. Even so, Flake had called Collins and asked for her support for reopening the background investigation. She agreed it was a good idea. If another investigation was necessary to get the nomination out of committee, Grassley would make it happen. It helped that they were confident that any investigation would go well for Kavanaugh. In fact, the White House had strongly considered ordering an FBI investigation when the first allegation broke, but after consulting with top brass at the Department of Justice, they worried that it would take more time than they could afford. The FBI, moreover, had a history of leaking against the Trump White House, engaging in bureaucratic delays, and generally resisting political accountability.
If the price of Flake’s vote to send the nomination to the full Senate was going to be an FBI investigation, they would have to accept that. But Republicans wanted it limited in time, not open-ended. Democrats wanted Flake to hold his vote until the investigation came back, regardless of how long it took. In any case, senators had no authority to order a supplementary FBI background investigation, much less to define its precise contours. The request for an additional investigation would have to come from the White House counsel.
Mitch McConnell’s chief counsel and “right hand man for every step of this process” was John Abegg.13 Summoned to the anteroom, he called Don McGahn to see if the supplemental investigation, building on the work the committee had already performed, could be limited to stipulated witnesses and completed quickly. Flake and Coons tried to talk to Christopher Wray, the director of the FBI, but he wasn’t available, so they called Deputy Attorney General Rod Rosenstein. Coons had followed Flake into the phone booth, which was so small that they couldn’t close its door. They made an absurd picture huddled around a cell phone, their limbs intertwined, trying to find out how long a thorough supplemental investigation would take. Flake understood the need for a reasonable limit to the investigation because of the Democrats’ propensity to keep moving the goalposts. President Bush tried to get through to Flake on the phone but was unable. Senator Cornyn, the Republican whip, was also leaning into the phone booth. He and Tillis kept making the point that nothing, including the FBI investigation, would be sufficient for recalcitrant Democrats.
Grassley kept the committee meeting in suspension while the plan was hatched. Few senators were back in their seats by the time the vote was to take place, so Senator Whitehouse said, “Mr. Chairman, given what’s happening in the anteroom, I think if some more time is needed, I think you’d get a unanimous consent to push the vote back pretty easily if you needed a few more minutes.” Whitehouse was referring to the “two-hour rule,” which prohibits committees from meeting for more than two hours after the Senate floor opens or after two o’clock in the afternoon. The rule is routinely waived, but the Democrats in the anteroom were threatening to invoke it now. Lee and Cornyn were telling Flake that he could take as much time as he needed, even until Monday, but aides impressed on him the need to reach a decision quickly. As soon as he did, the Republicans ran to their seats. Democrats had decided to allow the rule to be waived at the last minute, but word didn’t get to Grassley in time. The Democrats, confused, were slower to reach their seats. “You just witnessed history,” one top Republican aide said to another staffer.
Explaining the situation to the committee, Flake said that he had been talking with Democrats about the need for due diligence. It would be proper, he said, “to delay the floor vote for up to but not more than one week in order to let the FBI do an investigation limited in time and scope.” While he would vote Kavanaugh out of committee that day, his final floor vote would be conditional on what the FBI found. And he clarified that he would not cooperate with further delays.14 Grassley had the roll called, and Kavanaugh was voted out of committee.
The call for an additional investigation, Flake said, was “an effort to bring this country together.” He still expected to vote for Kavanaugh but only after a proper investigation, and he encouraged Democrats to accept his gesture in good faith.
Flake’s detractors accused him of pandering to the liberal media. He would be leaving the Senate in January and was looking for a television contract. But Flake loyalists said he was genuinely moved by the distress of women like those who trapped him in the elevator that morning. The additional delay frustrated Kavanaugh’s supporters, but the investigation turned out to be a godsend.
By the time Kavanaugh learned about the delay from McGahn, he had developed the habit of expecting the worst. A delay was disappointing, of course, but he told a few people that the investigation would be good for him. He knew that anyone digging deeply into the facts would be even more clearly on his side. He was comfortable. Senator Portman shared that confidence with a few others.