The Daily - The Anguish of Jeff Flake

Episode Date: October 1, 2018

Senator Jeff Flake’s last-minute demand for an F.B.I. investigation into Judge Brett M. Kavanaugh has single-handedly held up the confirmation vote for the Supreme Court nominee. Here’s the story behind that decision. Guest: Michael D. Shear, who covers the White House for The New York Times, and Ana Maria Archila, one of the protesters who spoke to Mr. Flake on his way to the Senate Judiciary Committee meeting on Friday. For more information on today’s episode, visit nytimes.com/thedaily.

From The New York Times, I'm Michael Barbaro. This is The Daily. Today, Senator Jeff Flake's last-minute demand for an FBI investigation into Brett Kavanaugh has single-handedly held up the Supreme Court nominee's confirmation. The story behind that decision. Court nominees' confirmation.

The story behind that decision. It's Monday, October 1st. Mike Shearer, where do things stand on Friday morning? So Friday morning, the hearings that had happened on Thursday. I am here because I believe it is my civic duty to tell you what happened to me while Brett Kavanaugh and I were in high school. A remarkable testimony by Dr. Blasey Ford. This whole two-week effort has been a calculated and orchestrated political hit. And the emotional and angry response from Judge Kavanaugh, that had taken place.

I intend to vote for you, and I hope everybody who's fair-minded will. The Republicans were aiming to move ahead as quickly as they could to try to push Judge Kavanaugh's nomination forward, ultimately to get him confirmed. So on Friday morning, they had scheduled a meeting

of the Senate Judiciary Committee. There are 10 Democrats on the committee, 11 Republicans on the committee. The Republicans, as of Friday morning, were very confident that they had the votes. The one exception to that was Senator Jeff Flake. All eyes now on Jeff Flake, the only undecided vote on the committee. He is a Republican from Arizona, but he's retiring in part because of what he has expressed as a frustration with the lack of bipartisanship in Washington. He has railed against President Trump's use of really harsh rhetoric. And so while he is definitely a conservative on policy matters, he was sort of a wild card. And yet even so, when everybody woke up Friday morning...

This is breaking news, and it's about the vote that's coming up on Judge Kavanaugh. At 9.29, Jeff Flake's office put out a statement saying that he had decided to vote. Jeff Flake, Republican, Arizona, will vote yes. Saying he would support Kavanaugh because he deserved a presumption of innocence, with Ford's allegation uncorroborated. He would provide that crucial 11th vote to give the Republicans a majority to move the nomination forward. nomination forward. So he begins to head to the committee room for the start of the meeting. He gets into an elevator from his office, heading up to the second floor of the Dirksen Senate office building. And he's in the elevator with a couple of aides before the elevator door

can close. Two Monday, I stood in front of your office with Adi Barkan. I told the story of my sexual assault. Two young women confront him. What you are doing is allowing someone who actually violated a woman to sit in the Supreme Court. And they confront him in the most personal way. You have children in your family. Think about them. I have two children.

I cannot imagine. They essentially start yelling at him that his vote to approve Judge Kavanaugh was an affront to women, that he was telling young women that their stories about sexual assault didn't matter. That's what happened to me, and that's what you're telling all women in America. And in fact, they started talking about their own experiences. If they have told the truth, you're just going to help that man to power anyway. That's what you're telling all of these women.

And this was captured on video, which was quickly released and went viral. on his face that Senator Flake is grim-faced, staring down at the floor of the elevator, trying not to sort of catch their gaze. At one point, one of the women says, Look at me when I'm talking to you. You're telling me that my assault doesn't matter, that what happened to me doesn't matter. Look at me. Don't look away when I'm talking to you. And he glances up, crestfallen. I mean, you can see the weight of this decision that he had already struggled with for the last week or more absolutely come crashing down on him.

Don't look away from me. Look at me and tell me that it doesn't matter what happened to me. It was clear, I think, to everybody that watched that video that however difficult the decision had been for Senator Flake up until that moment, it was immensely more difficult for him after that episode. OK, thank you. Thank you. Better respond. No, you can either come in or out. Thank you. Saying thank you is not an answer. This is about the future of our country, sir.

You're going to take a lifetime appointment in the Supreme Court. That's fine. Find security. In terms of having maximum impact, it couldn't have been timed better. And it is certainly true that members of Congress get feedback all the time. They get feedback from constituents. They get phone calls that come into their offices. So it's not true that they're completely isolated from what real people think. But there's also usually a distance, right? Especially when you're

at the Capitol, when you're in Washington, lawmakers sit up on the dais in a hearing room. They are both above the audience and distant from the audience. And the discussions about public policy and these big momentous decisions they have to make are often done among themselves and out of the direct contact from the people that they're going to affect. And this was a reminder for, obviously, Senator Flake, but also for the rest of us watching it, that there really isn't as much distance as we think between the decisions that the politicians we elect make and the people who they affect. So after what I'm sure felt like eternity to Senator Flake, he sort of escapes this elevator. The doors close. And he heads into this hearing room. What's going on in that room? So the hearing has just been gaveled to order by Senator Chuck Grassley of Iowa.

Republicans are assembling on one side of the dais. Democrats are assembling on the other. And all of them are settling in for what they expect to be a kind of predetermined outcome. Each senator on each side gets a few minutes to pontificate. And so Senator Grassley recognized Senator Dianne Feinstein. She made some comments. Thank you, Mr. Chairman. I'm very disappointed that we're here today voting on this nomination.

And then it went to a Republican senator. In the more than 12 years that Judge Kavanaugh has been a judge on the D.C. Circuit, he has built a reputation for honesty, courtesy, and integrity. And then it went to a Democratic senator. It goes back and forth. Each appointment to our nation's highest court, as with all others, is simply too important to rush to a vote. But even as the back and forth is happening, the Democrats are pleading for some kind of a delay.

You investigate. It's the least thing a sexual assault victim is entitled to when she comes forward. They don't understand why an FBI investigation couldn't take place. And I have conveyed to my friends and colleagues that I had wished we would take a one-week pause. One week only. Chris Coons of Delaware suggests that a one-week FBI investigation could help provide some clarity. And the Republicans are essentially rejecting that out of hand. Six FBI investigations and we miss the sophomore junior gang rapist.

We didn't miss it. It's much garbage. There's nothing that the FBI would do that the committee hasn't already heard. We made a decision to vote at 1.30. If there's some reason to change that, then we'll have to change it. But I'm not even going to get into a discussion about that right now. Fair enough. And then what happens?

At some point, Senator Flake gets up from his seat and walked behind the dais, behind the other senators that are talking. And he taps Chris Coons, the senator from Delaware, Democratic senator from Delaware, taps him on the shoulder and indicates that he wanted to talk to him. They walk through a pair of double doors behind the committee dais and they go privately back behind

into an ante room that's behind the committee chambers. People watching on television, the other senators are noticing this, but don't quite know what is going on. Behind closed doors, here's what was happening. Senator Flake and Senator Coons are friends. They've known each other a long time. They trust each other. They're the kind of friends in the Senate that are more genuine. It's not just my friend on the other side of the aisle.

Senator Flake says to Senator Coons, I'm having second thoughts. I think your idea about a week delay to give the FBI time might actually be possible, but I'm nervous, he says. And so what follows is absolutely a remarkable scene where suddenly this conversation between these two men becomes much larger. Senator Coons goes out and gets some of his Democratic colleagues to come in and continue the conversation behind

closed doors. Senator Tom Tillis of North Carolina, Senator John Cornyn of Texas, two Republicans, they also come in. Over the next 45 minutes or so, you have virtually every member of the committee back in this small, cramped hallway behind the committee room. And what's happening is Senator Flake is essentially standing pretty much silent, according to the people who described the scene, as he's surrounded on both sides by these two warring political factions. by these two warring political factions. So the Republicans on the committee, Senator Tillis and Senator Cornyn, are arguing strenuously, you can't do this, this would be terrible,

it's going to destroy the judge's life even more. Chris Coons and the Democrats are trying to coax him along, saying, look, you know, this is what the Senate is about. It's about compromise. It's about finding a way forward without jamming something through for political purposes. It got very heated, as it was described to us. And all of it with Senator Flake becoming even more anxious. Was he going to reverse himself and essentially put the brakes on what had seemed just moments before to be a kind of foregone

conclusion? and essentially put the brakes on what had seemed just moments before to be a kind of foregone conclusion. And so how does Flake decide to move forward? So at one point, he raises the concern of, is this something that the FBI could even do? Is this something that would be valuable to the FBI? Do they have the resources? Do they have the wherewithal? So somebody suggests calling Christopher Wray, the FBI director. They try that. They can't find Christopher Wray. They can't reach him.

And so the second choice is to call Rod Rosenstein. It comes down to, you know, a phone call with the very man who the president might yet fire and was actively considering firing. That's a phone call that obviously needs to be done with some privacy. So Chris Coons and Jeff Flake cram themselves into one of these old-fashioned kind of oversized phone booths, closed the door, took out a cell phone and essentially put it on speaker and called Rosenstein. the door, took out a cell phone and essentially put it on speaker and called Rosenstein. We are told that Mr. Rosenstein does reassure Senator Flake that the FBI can do an investigation,

though he does say that given the scope of it, relatively short amount of time, less than a week, that it's unlikely to produce a lot more than senators already know. But he says, yes, we can do that. So with this green light from Rosenstein, what does Senator Flake do? Senator Flake does one last thing before he comes back into the hearing room. And that is that he takes out his phone and he calls two of his Republican colleagues who are not members of the Senate Judiciary Committee. And that is Senator Susan Collins of Maine and Senator Lisa Murkowski of Alaska. He called the two of them and basically said, are you guys with me? Both assured Senator Flake that, yes, they would back him and that they would demand the same thing, a one week delay and an FBI investigation. And armed with that, Senator Flake went back into the committee room,

knowing that the Senate Republicans and President Trump would have to relent, because if they didn't, they wouldn't have the votes ultimately to confirm Judge Kavanaugh without the three Republicans. As a point of personal privilege, I'm going to call on Senator Flake to speak. Normally, we would start to vote right now, but as a point of personal privilege, I would call on Senator Flake. It's interesting. It all happens very quickly. And even for veteran watchers of the legislative sausage-making process, it was quite messy. I've been speaking with a number of people on the other side. We've had conversations ongoing for a while with regard to making sure that we do due diligence here.

Senator Flake announced his decision. And I think it would be proper to delay the floor vote for up to but not more than one week. He said that he had changed his mind and that now believed that he would be willing to vote for Judge Kavanaugh's nomination to move forward from the committee to the full Senate, but only with the assurance that this one-week delay would happen. So that's, with that agreement, I will vote to advance a bill to the floor. Clerk will call the roll. Wait just one second. Can Diane speak?

A couple of the Democrats, including Senator Feinstein, started to try to ask some questions to clarify exactly what that meant and what assurances they would have that it would happen. What are we voting on? Let's see. We are voting on the motion to report the nomination to the floor. Senator Grassley quickly said... The clerk will call the roll. Let's vote on the motion. Wait, that's not my understanding of what...

The person who calls the roll started calling senators' names. They started saying yes, yes, yes on the Republican side. Mr. Flake. Aye. As promised, Senator Flake votes yes. Mr. Kennedy. Aye. On the nominee.

Mrs. Feinstein. On the nominee. No. Democrats kind of weren't quite certain, I think, in some cases, what was happening. They all voted no. And before you knew it, Mr. Chairman. Because of the two-hour rule, we're adjourned. What?

The two-hour rule. No vote. Senator Grassley had gaveled down and said the ayes have it. Judge Kavanaugh's nomination has been kind of approved by the committee and forwarded to the full Senate. There is this confusion, a little bit about what it all meant. And as the senators are leaving, Senator Lindsey Graham is overheard by some reporters saying, Somebody's got to explain this to Trump. So I guess that'll be my job.

Mike, what do you make of what Jeff Flake did on Friday? I can't help thinking back to what you said about him when we first started talking. He's sort of despondent at the state of the divided country. He's distraught over the state of the U.S. Senate. He's in his final weeks as a member of the Senate. He's going to be out of office in just a couple of months. And then this moment, this huge decision comes before him in a way where he is so decisive. My sense of him is that he wasn't at peace with the initial decision. You could sort of see that in his face even before all of the kind of machinations behind the scenes took place. You could see looking at him that he didn't look at peace.

It's unclear to me whether it will turn out that Senator Flake will go down in history, you know, feeling like this is the sort of most heroic moment in his Senate career, because I think we don't know what the outcome of the FBI investigation is, whether people will see it as legitimate. And so I don't know what he will think about this in the end, but at least for the moment,

you could see on his face at the end of that hearing, after he had successfully engineered this FBI inquiry to take place, you could see a kind of lightness in his face, that however it finally comes out, that he felt like this was the right thing to do. Mike, thank you very much. We really appreciate it. Sure, happy you very much. We really appreciate it. Sure. Happy to do it. On Saturday, as he left for a rally in West Virginia, On Saturday, as he left for a rally in West Virginia,

President Trump said he would put no restrictions onto the FBI's investigation into Brett Kavanaugh. Yeah, they have free reign. They're going to do whatever they have to do, whatever it is they do. They'll be doing things that we never even thought of. But the Times reports that the scope of the investigation will be sharply limited. So far, just four witnesses will be questioned

about the accusations of sexual assault against Kavanaugh, including Kavanaugh's friend, Mark Judge, who Dr. Christine Blasey Ford said was in the room during the alleged attack. There are no plans to question a third accuser, Julie Swetnick, or any classmates who have contradicted Kavanaugh's testimony about his drinking and partying as a student. Are you confident that the FBI will be able to explore everything they want to, including if they are interested, the Julie Swetnick allegations, including whether or not he was honest to the Senate Judiciary Committee about his drinking. On Sunday, Democratic senators, including Amy Klobuchar of Minnesota on CNN, said that those limitations risked undermining the credibility of the investigation. What we are hearing are reports that they're somehow trying to limit this to a few witnesses

or tell them what they should do. And while the White House decides who to nominate and then that person is submitted to a background check, I've never heard that the White House, either under this president or other presidents, is saying, well, you can't interview this person. You can't look at this time period. You can only look at these people from one side of the street from when they were growing up. I mean, come on. Is there evidence that that's beyond the room? So that's why we have to allow them to... We'll be right back.

I was so enraged by the fact that all these men in the Judiciary Committee had basically forced a woman to tell the story of the most traumatizing experience of her life and then had proceeded to say, well, that's fine. We still like our guy. I just could not believe that that's what was happening. We still like our guy. I just could not believe that that's what was happening. And I just wanted, really, I wanted Senator Flake to look me in the eye and to hear my pain and my rage. And I understood that it was the pain and the rage of women across the country who cannot believe that this is still happening today. still happening today. Ana Maria Archila was one of the two women who followed Senator Flake out of his office on Friday morning. I had been protesting alongside hundreds of people who had been coming to Washington,

D.C. for weeks. We were there to protest the nomination of Brett Kavanaugh. But on Monday of this week, I went to Senator Flake's office and for the first time told my story as a survivor of sexual abuse. And so on Friday, I went back to his office to see if I could talk to him. I had just met a young woman, Maria Gallagher, a few minutes before, and she was there for the first time. She had never talked to any elected officials. She had never told her story, but she felt compelled to be there with the people that had been protesting. compelled to be there with the people that had been protesting. And so together we went to Senator Flake's office,

hoping that maybe we could catch him and talk to him and tell him our stories. Right before we saw him walk into the elevator, we saw the statement that came out of his office that said that he was ready to support Brett Kavanaugh. And then right after he walked out of his office, this group of reporters that had been standing by like ran behind him and we ran behind them and inserted ourselves in that elevator. And what are you thinking when you actually find yourself with this one opportunity to speak to Senator Flake? It's sort of extraordinary luck. Are you conscious of that in that moment?

I am conscious of the urgency of not letting him get away. On Monday, I stood in front of your office with Adi Barkan. I told the story of my sexual assault. I'm conscious of the fact that this is the moment that he might, for the first time, understand the pain that women are feeling. They will have to have someone in the Supreme Court who has been accused of violating a young girl.

What are you doing, sir? He kept saying, thank you, I have to go. He kept pressing the button in the elevator to try to close the door. And he, I think, really wanted that to end. And at that moment, Maria Gallagher jumped in and said, I was actually insulted and nobody believed me. I didn't tell anyone. And you're telling all women that they don't matter, that they should just stay quiet because if they tell you what happened to them, you're going to ignore them. That's what happened to me.

And that's what you're telling all women in America, that they don't matter. They should just keep it to themselves. Because if they have told the truth, you're just going to help that man to power anyway. That's what you're telling all of these women. That's what you're telling me right now. And I think her voice and the pain in her voice was so intense he could not look at her. It was in that moment that she said, That's what you're telling me right now. Look at me when I'm talking to you.

Look at me. Look at me. That what happened to me doesn't matter and that you're going to let people who do these things into power. That's what you're telling me when you vote for him. Look at me. In some ways, like the essence of this moment is that phrase. Look at me. Do not look away. Look at me and tell me that my story doesn't matter. Tell me that you are okay sending that message to women across the country, that our stories do not matter. You have an opportunity to tell me a different thing,

which is that, yes, your story, your experience matters. And I think that's what we were trying to do in that moment in that elevator. I think he initially, you know, tried to escape kind of fast. And then I could see in his demeanor and his body that it was sinking in, that he could not escape the emotion and that he could not escape the connection that we demanded from him. You are allowing someone who is unwilling to take responsibility for his own actions to sit in the higher court of the country and to have the role of repairing the harm that has been done in this country to many people. No, no, thank you. Senator, do you care to respond?

And what exactly told you that? That it was sinking in? No, I want to talk to him. Don't talk to me. What do you think? I understand. But tell me I'm standing right here in front of you. I think I looked at him. What do you have? Do you think that he's telling the truth? No. Do you think that he's telling the truth to the country? You have power. I looked at him. We looked at him. We looked at his face the same way that we were demanding that he look at us. We were looking at him. I could see that the turmoil of the last few weeks really in him. And I could see turmoil in his face.

Senator, do you want to respond to their complaint? Senator, you can't respond to their complaint. No, I need to go to the hearing. I just issued a statement. I'll be saying more as well. So, no, there have been a lot of questions here. Not in my wildest dreams did I actually think he was going to take a different action from the action he had already announced.

Poppy, I don't think we've witnessed a moment like that in recent memory. A U.S. senator confronted by two, I believe, two, I believe, women who say that they have been raped themselves. One of them saying to him, and I'm quoting here through tears, don't look away from me, look at me and tell me that it doesn't matter what happens to me. Just remarkable. It is remarkable.

We just witnessed about five minutes of Republican Senator John Flake after he made an incredibly important... I wonder what you make of the fact that you may have gotten through to Senator Flake. He may have left open some space

in his heart and in his mind to be influenced by the perspective of those around him, not just his close aides, but in a sense by complete strangers. But one of the reasons that he's leaving office is because he's so troubled by the state of partisanship in Washington. And without Flake in office, there wouldn't have been a single person on that committee who would have been actually open to changing their mind. I feel worried, like Senator Flake feels worried about the state of our politics. And I think it is by forcing those who are elected to remember that they are not representing their party. They are representing people who have stories and experiences, whose lives are shaped every day by their decisions.

That that is the role that they should be playing. That when they make decisions, they have to be thinking about how it impacts real humans. Listen, Ta-Nehisi Coates' book, To His Son, Between the World and Me, has one sentence that I feel like is so important. He says, we cannot understand slavery or any great injustice by thinking about the masses. We have to think about it in the experience of one person. What was this enslaved woman thinking when she woke up in the morning. Who did she miss that morning? Who did she talk to when she felt sad? How did she feel when her child was stolen from her?

We have to think about, and especially people who are in the position of creating laws in our country, have to think about the impact of their decisions by thinking about one person. How is that one person going to be shaped by me? And I think Senator Flake has a sense of that and was forced to remember that

when Maria and I confronted him in the elevator. And now that you've had a little more time to think about it, is there anything else that you want to say to Senator Flake? I want to make sure that he knows that we will not forget. He knows this, but I want, if I could talk to him again, I would tell him we won't forget. Women will remember what you're doing. And we will draw meaning from your actions for many, many years.

And Maria, I really want to thank you very much for spending time with us. Thank you so much. Here's what else you need to know today. A 7.5 magnitude earthquake that struck Indonesia on Friday triggered a deadly tsunami that has killed at least 830 people and possibly hundreds more. God, help us. God, help us. God, help us. God, help us. God, help us. God, help us. God, help us.

God, help us. The death toll has quickly led to questions about Indonesia's early warning systems, especially after officials told the Times that none of the 22 buoys that the country uses to monitor for tsunamis have been operational in years. That's it for The Daily. I'm Michael Barbaro. See you tomorrow.