Wednesday, June 26, 2019
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The Issues in Kavanaugh Are Assault and Perjury, Not Booze and Carousing

Brett Kavanaugh

Liz Swisher gets it. And she’s not a lawyer. She is a prominent physician in Seattle. She is also a University of Washington professor and director of the Breast and Ovarian Cancer Prevention Program at Seattle Cancer Care Alliance. She is a graduate of Yale. She is also a former classmate of Brett Kavanaugh, President Trump’s nominee to the U.S. Supreme Court.

Swisher understands what Trump, Kavanaugh, many Republicans, and even a few libertarians do not understand. The issue involving Kavanaugh’s nomination is not about whether he was a boozer or carouser in college. The issue is whether he lied under oath — that is, whether he committed perjury — when he testified last Thursday before the House Judiciary Committee.

Swisher expresses the point so clearly and so succinctly that it’s best that I just quote her directly from an interview she gave to CNN (emphasis added):

Well, I’ve known Brett since the very beginning of freshman year. He was always one of the beer-drinking boys, and I drank beer with him. I liked beer – there’s no problem with drinking beer in college. The problem is lying about it.

He drank heavily; he was a partier. He liked to do beer bongs; he played drinking games. He was a sloppy drunk. He was more interested in impressing the boys than he was in impressing the girls. I never saw him be sexually aggressive, but he definitely was sloppy drunk.

CNN: So, in terms of the allegations of a more serious nature, you have nothing on that. You never saw him do anything that you would call wrong or offensive or inappropriate with any women. Good to [note] out of fairness. However, his description of himself as, certainly in high school – I was about my church programs, going to church, studying, being number one, doing my sports teams. Didn’t have sex in high school. Didn’t have sex for many years after that. Loved beer, but that’s it. Nothing to excess. You don’t buy it?

SWISHER: I don’t buy it. That’s not the Brett I knew as soon as I met him in college; it’s not the Brett I saw during four years at Yale, and I don’t think many of his answers were credible. I really question any senator that believes the “Ralph Club” had something to do with his known weak stomach. I knew of no weak stomach. That’s not what ralphing means to any college kid.

CNN: Yes, it usually means that you’ve just thrown up from drinking too much, in general. … Let me ask you something though. If he is lying about how much he liked drinking, and whether or not he got drunk a lot, if he is not telling the truth about that, do you think that that is disqualifying for him in this nomination?

SWISHER: Absolutely. That’s perjury. He was under oath.

CNN: Even if it’s not about the main allegations. Even if he’s telling the truth that “I’m not the one who did this to Christine Ford; I didn’t do what your former roommate at Yale, Ramirez, alleges. I never did that to her. I was never there; I didn’t do any of that.” If he’s truthful about all that, but not telling the truth about how he was with booze, that’s enough for you?

SWISHER: That’s enough for me. I would have stayed on the sidelines if he had said, “I drank to excess in high school. I drank to excess in college. I did some stupid things, but I never sexually assaulted anybody” – that I would have stayed on the sidelines for. I didn’t have any credible evidence to the contrary. But to lie under oath; to lie about that? Then what else is true? To blur, you know, in the highest position in the judiciary in our land, to not know the difference between truth and lies, that’s just terrible. And it’s not about women versus men; it’s not about Democrats versus Republicans; it’s about the integrity of the Supreme Court.

Swisher isn’t the only one who gets it. So does Charles “Chad” Ludington, another former Yale classmate of Kavanaugh. Ludington is an associate professor of history at North Carolina State University. According to an article in the Raleigh News and Observer, Ludington has released a statement disputing the truthfulness of Kavanaugh’s sworn testimony regarding his drinking habits at the Judiciary Committee hearing. Ludington stated,

For the fact is, at Yale, and I can speak to no other times, Brett was a frequent drinker, and a heavy drinker. I know, because, especially in our first two years of college, I often drank with him. On many occasions I heard Brett slur his words and saw him staggering from alcohol consumption, not all of which was beer many times when he could not remember what was going on. When Brett got drunk, he was often belligerent and aggressive. On one of the last occasions I purposely socialized with Brett, I witnessed him respond to a semi-hostile remark, not by defusing the situation, but by throwing his beer in the man’s face and starting a fight that ended with one of our mutual friends in jail.

Is that sufficient reason to reject Kavanaugh’s nomination? According to the News Observer article, “Ludington said he did not believe that heavy drinking ‘or even loutish behavior’ from a young person ‘should condemn a person for the rest of his life. I would be a hypocrite to think so.”

But then Ludington added:

I do believe that Brett’s actions as a 53-year-old federal judge matter. If he lied about his past actions on national television, and more especially while speaking under oath in front of the United States Senate, I believe those lies should have consequences. It is truth that is at stake, and I believe that the ability to speak the truth, even when it does not reflect well upon oneself, is a paramount quality we seek in our nation’s most powerful judges.

There are two major issues involved in this controversy:

One, did Brett Kavanaugh sexually assault Christine Blasey Ford; and

Two: did Brett Kavanaugh commit perjury during his sworn testimony before the House Judiciary Committee last Thursday, not only regarding his drinking habits but also on other matters?

The issue of perjury regarding Kavanaugh’s drinking habits would obviously have a bearing on the assault charge. Both Kavanaugh and Trump have said that they don’t doubt that Kavanaugh is telling the truth about the assault. They’re maintaining that she has mistaken Kavanaugh for someone else, notwithstanding the fact that she unequivocally testified with 100 percent certainty that it was Kavanaugh who attacked her. But it is also possible that Kavanaugh’s drinking habits caused him to block out the assault within his own mind, which might explain his reticence in talking truthfully and candidly about the real nature of his drinking habits.

In any event, neither of those two allegations was investigated by the FBI as part of the background checks that it conducted. That’s because both allegations were unknown to the FBI when it conducted its several background checks on Kavanaugh.

The first question everyone must answer is: Do these allegations matter? That is, if it were definitely established that Kavanaugh did in fact commit either or both of these offenses, should Congress vote to deny his confirmation to the Supreme Court?

There are people who say that bad things that a person does as a teenager should not disqualify him from later holding public office. I can understand the logic of that argument. The law recognizes that minors are not fully developed and therefore holds them to a different standard. Thus, if a minor is convicted of driving while intoxicated or disorderly conduct, I think most people would say that he shouldn’t be disqualified from later serving on the Supreme Court.

But what if the crime is much more serious? Suppose a 17-year-old boy goes on a shooting spree in a movie theater and kills 20 people. Should a U.S. Senator factor in that crime when voting on whether to confirm that person to a lifetime appointment to the Supreme Court? Or should he say the same thing about his being a minor who was guilty of DWI?

But here is the question every American should ask himself: Suppose a 53-year-old lawyer and judge knowingly, intentionally, and deliberately commits perjury during his confirmation hearing. Should that disqualify him from being appointed an associate justice on the Supreme Court?

Swisher says yes. So does Luddington. So would I. My hunch is that at least 98 percent of the legal profession would say yes, including law students.

One gets the distinct impression that President Trump and some Republican members of the U.S. Senate would answer “no” to that question, as if perjury is just no big deal. Why do I say that? Because of their eagerness to immediately head into a confirmation vote without an extensive investigation into whether Kavanaugh actually did commit these offenses. In fact, one gets the distinct impression that Christine Blasey Ford was invited to testify as simply a formality and not really in an attempt to determine the accuracy of her accusation. That’s evidenced by the fact that Trump and some Republicans were calling for a confirmation vote immediately after the testimony that she and Kavanaugh delivered rather than calling for an extensive investigation to determine whether Ford’s accusation was true.

After all, after repeatedly pointing out that there was no corroborating evidence to support Ford’s accusation, the Judiciary Committee declined to summon the person who Ford testified was in the room and participating in the assault. That would be Mark Judge. Even though he has sent in an unsworn letter denying any recollection of the event, why shouldn’t he be subjected to cross-examination in person, just as Ford and Kavanaugh were?

Owing to Republican Senator Jeff Flake, Trump and the Republicans finally relented last Friday and authorized an investigation. While Trump announced that the FBI would have free rein in the investigation, it didn’t take long for people to discover that his statement was false. In actuality, Trump had secretly placed severe limitations on the FBI’s investigation. Trump later relented under pressure and apparently lifted some of his restrictions. According to media reports, the remaining restrictions including a prohibition on the FBI from investigating Kavanaugh’s testimony regarding his drinking habits, which, of course, would go the heart of a perjury charge.

Even more significant, Trump has limited the FBI to a one-week investigation. Why the hurry? Why the short deadline? Isn’t it important to be as certain as possible that Congress does not confirm a sexual assaulter or a perjurer to the Supreme Court even if that takes a month or two of investigation? Moreover, why should the FBI be doing the investigating? Why shouldn’t the Senate Judiciary Committee undertake an investigation as part of its duty to “advise and consent”?

Why wouldn’t Kavanaugh, who is claiming his innocence, welcome a full and complete investigation? Why wouldn’t Trump? Why wouldn’t Congress? Why wouldn’t everyone? What’s the downside of a full and complete investigation, even if it takes a month or two?

Yes, I get it. Kavanaugh is anti-Roe vs. Wade. But there are lots of competent conservative lawyers and judges who are anti-Roe vs. Wade. Kavanaugh is not indispensable. There are others who can easily take his place.

Yes, I also get that there is a chance that Republicans could lose control of the Senate in the November elections. Nonetheless, they would ultimately get a competent conservative justice confirmed even if he might not be rabidly anti-Roe vs. Wade. Is Roe vs. Wade so important that Republicans are willing to risk appointing someone to the highest court in the land who might well have committed sexual assault as a 17-year-old and then lied about it and other things as a 53-year old? What kind of message will that send to law students all across the land, all of whom are taught that perjury is a grave crime that strikes at the heart of the judicial and legislative process?

Some Kavanaugh supporters are claiming that the nomination process should be treated like a criminal prosecution. Some are even suggesting that that Christine Blasey Ford has failed to fulfill her burden of proof in the matter.

Such critics get it wrong. This is not a criminal prosecution, and Ford has no burden of proof in this matter.

If the Senate votes to deny Kavanaugh the nomination, he doesn’t go to jail or get fined, as people who are convicted of crimes do. He simply continues going to work every day in his lifetime appointment as a federal appellate judge, a super-plum job in the legal profession, second only to a seat on the Supreme Court.

Moreover, Ford is just a witness in a legislative proceeding. A witness has no burden of proof. Her responsibility is simply to relate her version of events in a truthful manner.

The best way to look at the confirmation process is to consider it as a job application. Kavanaugh is asking for a job as an associate justice of the U.S. Supreme Court. It is his burden and his responsibility to convince the American people, through their elected Senators, to hire him for that job. He is not entitled to the job. And there are lots of other competent people who would love to have the job.

For an excellent article analyzing the nature of a confirmation hearing, as well as an excellent critical analysis of the report that the “expert” prosecutor that the Republican members of the Judiciary Committee hired to ask questions of Ford and Kavanaugh, see this article: “Here’s What Prosecutor Rachel Mitchell Gets Wrong about the Evidence Against Brett Kavanaugh” by Ariahna Gray, a former practicing lawyer who now works for The Intercept.

Has Kavanaugh fulfilled his burden and responsibility to convince us that he should be hired for this job? I say: Let’s answer that question after there has been a full and complete investigation of the allegations against him. What’s wrong with that?

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation.

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