Law & the Courts

In Evaluating Credibility, the Signs Point in Brett Kavanaugh’s Favor

Supreme Court nominee Judge Brett Kavanaugh at his Senate Judiciary Committee confirmation hearing, September 4, 2018. (Chris Wattie/Reuters)
Weighing these particular facts in this particular case.

It’s always a good idea, in politics, to evaluate accusations against your friends as if they were made against your enemies, and to evaluate accusations against your enemies as if they were made against your friends. That doesn’t mean you never give your friends some benefit of the doubt, but it does mean you should have some general principles and guideposts for making sense of charges and counter-charges that don’t change based on the R or D after the names. Or better still, ask, “How would I evaluate an explosive allegation if I had no dog in the fight?” Try doing that with the allegation by Palo Alto University psychology professor Christine Blasey Ford that Judge Brett Kavanaugh attempted to rape her at a high-school party in or about 1982, when Kavanaugh was 17 and Ford was 15.

There are two unfair and irrational ways to look at this allegation. One, of course, is simply to decide that because you already opposed or supported Kavanaugh, that should determine whether you think the charge is true (or useful). That’s the partisan route, and it treats individuals caught up in political fights as fungible and disposable parts.

The other is to decide that, because the allegations remind you vaguely of some charge in the past that turned out to be true, or false, or because you want accusers to generally be believed, you should just decide the same has to be true here regardless of the particular facts. Down that path lies the line of reasoning that says, “A guy this color mugged me once, so they must all be criminals.” It may serve Democrats’ political purposes to make this a referendum on all sexual-assault charges by all women, but of course they don’t believe it themselves — they would not do that if this were a valued member of the Democratic team such as Bill Clinton, Keith Ellison, or Sherrod Brown.

The particular facts always matter in particular cases; nothing is more essential to the work of lawyers than to understand this. Facts are stubborn things. In evaluating the charge against Kavanaugh, we should first ask how serious it is, and then how credible it is. The tools we should use are the same ones we would use regardless of who the accused and the accuser are. And we should also look at how the various participants in this controversy are acting, as that can tell us something about what they believe the truth is.

How Serious Is the Charge?

The first issue here is that the charge against Kavanaugh is about something he is claimed to have done when he was 17 and drunk. This is, as many have noted, a dangerous path to go down in evaluating public servants. Up to a point, I have a problem with resurrecting such things, and the standard for reviving them against adults should be very, very high. Teenagers in general and teenage boys in particular do a fair number of stupid, rude, and inappropriate things, and doubly so when drunk, horny, and in the presence of the opposite sex. Moreover, public mores placing guardrails on such behavior were at a pretty low ebb in 1982, after two decades of attacks on traditional sexual morality and before the current rethinking of the consequences of the Sexual Revolution and its empowerment of male sexual predation. It would seem sad to take a man who has led an exemplary life for all his adulthood and tear him down over crossing some lines as a teenager after too many beers.

But. But. If we accept every word of Professor Blasey Ford’s allegations, we are not talking about horseplay gone bad or even an inappropriate grope at a drunk-teens party, better left to the mists of youth after the passage of time. Blasey Ford now claims that Kavanaugh, with the assistance of a co-conspirator, attempted to forcibly rape her. That is, rightly, a very serious crime, and one that strikes to the heart of a man’s character. If proven true, it would justify — at a minimum — removing him from his current position on the federal bench, and possibly disbarment and prosecution. I must dissent from Dennis Prager’s view to the contrary.

If you are skeptical of Blasey Ford’s charge, as I am, it may strike you that she has very precisely chosen an allegation serious enough to warrant those consequences, complete with the headline-grabbing line, “I thought he might inadvertently kill me.” It is possible, of course, that something happened that doesn’t match the severity of her description (although Kavanaugh and two other named attendees at the alleged party are denying that any such party ever even happened). But if you accept the truth of the story, the simple fact that Kavanaugh was 17 and drunk would not be enough to justify ignoring it.

If it’s true, it matters. But is it true?

What Is the Nature of the Evidence?

Let’s start with the obvious fact: As is often the case with accusations and conspiracy theories, we may never know the truth; the best we can do is figure out if the evidence we have is enough to justify believing it. In a criminal court of law, that means “proof beyond a reasonable doubt,” but the U.S. Senate is making the decision here about whether to confirm Kavanaugh, and it can apply any standard of proof it wants. The charge is a serious one, but so is the public trust that will be placed in Judge Kavanaugh on the Court. If I were a senator, I would effectively apply the standard we use in civil litigation: proof that makes the event more likely than not.

So far, in terms of evidence, we have statements made to the media by four people in position to have been involved in 1982 (Blasey Ford, Kavanaugh, Mark Judge, and Patrick Smyth), one of whom (Blasey Ford) claims to have passed a polygraph examination (more on that later). While Kavanaugh, Judge, and Smyth have issued formal statements to the Judiciary Committee that would carry a risk of prosecution if they lied, Blasey Ford has not spoken directly to the Senate. We seem to have a statement by a fifth person (Christina King) relating what she says she heard second-hand at the time, plus reported statements by Blasey Ford’s husband and notes taken in 2012 by Blasey Ford’s therapist. Let’s walk through some of the common questions you would ask to test the credibility of this kind of story:

1. Is There Corroborating Evidence?
As David French has ably explained, eyewitness testimony can be notoriously unreliable, and all the more so when relating a traumatic event; we not only have lots of experience with this as lawyers, but also a body of social-science research calling into question the recall of witnesses who are testifying solely from memory. That’s a problem even when you are dealing with totally honest, totally unbiased witnesses, who were not under the influence of alcohol, and are relating relatively recent events.

There is not a shred of hard evidence here to go on here — no documents, no video, nothing of the sort. Blasey Ford admits that “she told no one of the incident in any detail” for three decades, so there are also no witnesses anywhere close in time to the events who could say that her story has been consistent over time.

The Facebook post circulated Wednesday morning on Twitter by King (and subsequently deleted from Twitter “because it served its purpose”) purports to provide corroborating evidence, from someone who was “a year or so” ahead of Blasey Ford in high school and who knew Mark Judge then, that “This incident did happen. Many of us heard about it in school and Christine’s recollection should be more than enough for us to truly, deeply know that the accusation is true.” But even assuming that King’s social-media post accurately reflects her background, it is at best hearsay of hearsay — she says she heard about it, but not from whom or when, and she now refuses to do any further media interviews on the grounds that “I do not have first hand knowledge of the incident that Dr. Christine Blasey Ford mentions” and “I don’t have more to say on the subject.” She basically admits that she was already opposed to Kavanaugh’s nomination and is just asking the reader to believe Blasey Ford on the basis of what their high-school environment was like. It’s very unlikely that this sort of thing would be admissible evidence in court, and given her refusal to speak further, the Senate shouldn’t give it much credibility.

[UPDATE: King now says “That it happened or not, I have no idea…I can’t say that it did or didn’t” and knows only about “a ‘buzz’ that went around the weekend of the party in question about an alleged incident involving students from her school and Kavanaugh’s” – so, nothing specific to Kavanaugh himself.]

Finally, we have what Blasey Ford reportedly told her therapist and her husband in 2012, which is cited to show that she didn’t just gin this up at the last minute when Kavanaugh was nominated for the Supreme Court. The therapist’s notes — or at any rate the selected portions of them seen and paraphrased by the Washington Post — make no mention of Kavanaugh’s name, and are not totally consistent with Blasey Ford’s story today. For example, according to the Post, “The notes say four boys were involved, a discrepancy that Ford says was an error on the therapist’s part. Ford said there were four boys at the party but only two in the room.” The notes are the only corroborating evidence Blasey Ford has from before 2018, and they don’t support her very far.

2. Is the Story Specific, and Does the Story Make Sense?
Making sense is the strongest point in Blasey Ford’s favor, and the one that gives her story its popular support: This sounds like a real incident, and undoubtedly mirrors other real events. Certainly, we know Kavanaugh and Judge to have been booze-and-party types at the time, and Judge admits to having been a very hard drinker. It’s not hard to picture a generic group of privileged white teenagers acting in this fashion. Blasey Ford’s account makes internal sense, and does not require any elaborate conspiracies.

However, not all of her story is entirely believable without raising some eyebrows. She insists that “each person had one beer but that Kavanaugh and Judge had started drinking earlier and were heavily intoxicated.” Which seems awfully convenient if it is important for her to maintain that her memory of the incident is unclouded by alcohol, and frankly sounds a lot like the kind of thing teenagers say when caught drinking (“Honestly Mom, those guys were drunk but I only just had one beer.”) The nature of the allegations make it irrelevant whether she was drunk, if she’s telling the truth — but whether she was drunk matters a lot to how clear her memory of the event is 36 years later.

Moreover, and perhaps unsurprisingly given the passage of so much time, there are an awful lot of details missing from this story — when the party was, where it was, how she got there or left, what she did after. That becomes particularly important given that Kavanaugh, Judge, and Smyth — three of the four boys supposed to have been in attendance — all deny any of this happened at all. And if it was a party in the summer, as Blasey Ford now claims, that would seem inconsistent with King’s claim to have heard about it at school at the time.

3. Does the Story Fit the Character of the Accused?
There’s one other question about the story making sense: Can we picture this man doing this? If we were talking about an allegation against a man known to be a sexual predator or to have had the low sexual morals to treat women as disposable sex objects — a man such as Bill Clinton, or Donald Trump, or Ted Kennedy — we might put more stock in Blasey Ford’s account. Roy Moore, after all, faced some allegations that might not have been quite so damning except that there were so many of them telling similar stories from the same time period.

Not so with Brett Kavanaugh. Drinking too much? Plausible enough. Given what we know about Kavanaugh and Judge (his friend who later wrote a memoir about his alcoholism), the picture of them being drunk at a party as teenagers is credible enough. And drunk teen boys don’t always know where the lines are. But the very severity of the predatory behavior alleged by Blasey Ford stands in stark contrast to the unbroken testimony of dozens of women who have known Kavanaugh over the past three and a half decades, dating back to high school (including high-school and college girlfriends); none of them seem to think this is the man they have known. Left-wing sportswriter Molly Knight inadvertently makes this point:

That’s not an ironclad rule of human behavior, especially when a lot of booze is involved, but it is certainly one well-supported by human experience, and if anything, it is driven home by the past year’s worth of “Me Too” scandals: Predatory men typically don’t just outgrow it. If Blasey Ford is telling the truth about Brett Kavanaugh, it’s completely at odds with the entire rest of his life.

4. How Much Time Has Passed?
Thirty-six years is a long time. If you start by assuming that the assault happened generally as described, of course, the passage of time doesn’t matter much, but in trying to get to the bottom of conflicting accounts, it matters a whole lot. Our system of law has statutes of limitations that apply to many criminal and civil cases for a reason: Memories fade, witnesses get hard to find, corroborating documentary evidence becomes sparse. The passage of time makes it harder for Kavanaugh to defend himself, not just because there is less evidence available but also because it contributes to the lack of specificity about the date and location of the alleged party.

Consider, for example, the Swift Boat Veterans controversy of 2004. It is conventional wisdom today among liberals that (1) it was abhorrent for anyone to question the credibility of John Kerry, a decorated combat veteran and (2) every one of the decorated combat veterans criticizing him was lying. But if you followed the Swift Boat controversy closely, you had to come to the conclusion that both Kerry and his critics were wrong about some of the details of what had happened in war 35 years earlier — even if you thought everyone was recalling in the best of good faith (Kerry, for example, had to revise his account of his first Purple Heart and wholly abandon the “Christmas in Cambodia” story he’d been retailing in great detail for decades after claiming it was “seared” in his memory). The longer ago an event was, the easier it is for us to convince ourselves of an embellished, over-dramatized, or over-simplified account of it.

5. How Much Time Passed before the Accusation Was Made?
It should also give us some pause that it took until 2012 for Blasey Ford to talk about the incident, and perhaps until much more recently than that for her to name Brett Kavanaugh. Other accounts from her friends are at best vague on when she brought it up. Yes, it’s true that sexual-assault victims sometimes are very reluctant to talk about their experiences, so I don’t discount her account for this reason alone. But there has been a particular problem with the notorious phenomenon of “recovered memory” of prior sex abuse, which has been the subject of decades of controversy for its role in unjust criminal convictions, and Blasey Ford’s sudden opening of the topic in a 2012 therapy session smacks of that — which might mean the memory is somehow concocted, but might also mean that it has evolved a good deal from the original traumatic incident, maybe even to the point where she has the identity of her attacker totally wrong. At a minimum, by waiting so long to tell the tale, she has less in the way of corroborating support.

6. What are the Motives of the Accuser?
We do not know a ton, at this point, about Blasey Ford’s motivations or political activism. We do know that she’s a California Democrat, a 2017 Bernie Sanders donor, attended the “March for Science,” signed a letter protesting Trump immigrant-detention policies, and attended the “Women’s March,” so unlike some of the accusers of Bill Clinton and Roy Moore, she’s naturally politically opposed to the man she is accusing. We also know that from the very first time she pointed the finger at Kavanaugh, she identified him as a potential Supreme Court nominee.

7. Is It Possible Witnesses are Honestly Mistaken?
So, after all this, is it possible that nobody is lying, but that the truth is in between? At first blush, that might well have seemed plausible: Maybe Blasey Ford remembers the event well but has the names wrong; maybe she misremembers the severity of the event, which in turn would make it more plausible that Kavanaugh, Judge, and Smyth, especially if they’d been drinking heavily, would not have remembered it. But then, as Ramesh Ponnuru has observed, Kavanaugh is a famously careful and detail-oriented man, yet he, Judge, and Smyth have all been very definitive that nothing like this — not even Blasey Ford’s description of the party in the first place — ever happened. Consider Smyth’s statement today:

“I understand that I have been identified by Dr. Christine Blasey Ford as the person she remembers as ‘PJ’ who supposedly was present at the party she described in her statements to the Washington Post,” Smyth says in his statement to the Senate Judiciary Committee. “I am issuing this statement today to make it clear to all involved that I have no knowledge of the party in question; nor do I have any knowledge of the allegations of improper conduct she has leveled against Brett Kavanaugh.  Personally speaking, I have known Brett Kavanaugh since high school and I know him to be a person of great integrity, a great friend, and I have never witnessed any improper conduct by Brett Kavanaugh towards women.”

There really is not a lot of wiggle room left here for everybody to be telling the truth, unless Blasey Ford has just gotten the identification of the boys involved wrong.

8. How Are the Various Players Acting?
That brings us to the final question: How everyone has behaved in 2018. On Kavanaugh’s part, he has offered a vigorous denial and been willing to go before the Judiciary Committee on Monday to tell his story under oath. His friends, Judge and Smyth, have submitted written statements that are equally definitive in denial, though neither of them — having been dragged into this controversy against their will — wants to testify.

Neither Blasey Ford nor Senate Democrats, however, have acted as if getting her account on the record is a priority, and Senate Democrats have not at any point acted as if they believed the story. Dianne Feinstein simply sat on Blasey Ford’s letter without informing her colleagues for two months — never asking Kavanaugh about any such thing during the scheduled hearings — ostensibly on the grounds of protecting Blasey Ford’s anonymity, which Senator Feinstein then compromised by issuing a statement about its referral to the FBI to the media. Waiting until after a long series of other desperate criticisms of Kavanaugh had been thrown at the wall without sticking gives the entire thing a strong air of a last-second delay-and-smear tactic rather than a sincere effort to get the truth.

Blasey Ford claims to have taken a polygraph test, but that too was done months ago, apparently in her lawyer’s office, and the questions have not been revealed to the public, nor why she was taking such a test in August if she was actually reluctant to come forward. And now that a hearing has been scheduled for her to appear, she has balked at telling her side — and conveniently enough, her supposed justification for doing so just happens to be exactly what Senate Democrats want for political purposes: a referral to an FBI investigation in order to protract the matter.

Recall from pre-hearing flaps over Kavanaugh’s White House documents from his time before his twelve-year judicial career that Senate Democrats’ obvious goal all along has been to find some way, any way, to push the vote off until after the election. They have two reasons to want this: so they can spare ten red-state Democratic senators the need to take a position before facing the voters, and so they can hold out some hope of pushing the vote into a Democrat-controlled Senate in order to roadblock the nomination as revenge for Merrick Garland.

Yet, as Andy McCarthy explains at length, there is no reason on earth why an eyewitness to an event — specifically, the victim of an alleged sexual assault — should be the last, rather than the first, person to be interviewed in an investigation of this type, so there is no good-faith justification for Blasey Ford to insist on an FBI probe as a precondition to testifying. This isn’t like a complex white-collar case where prosecutors or litigants would expect to work their way up the chain of witnesses before reaching the people at the top of an organization. If Blasey Ford is telling the whole truth, what can she or anyone interviewing her gain from waiting to see what else turns up or what other people might say before hearing her account under oath?

For my part, I think the Judiciary Committee should go forward on Monday and let Kavanaugh testify, even if he’s the only witness; his good name has been placed in the crosshairs, he’s the nominee, and he should have the opportunity to defend himself before the world. Even as a matter of pure politics, it would benefit Senate Republicans to do that to clear the air. If Blasey Ford testifies as well, the Judiciary Committee would be well within its rights to probe the many reasons for questioning the credibility of her story, and the Senate will be entirely justified in confirming Brett Kavanaugh if they end up hearing nothing more than we have seen so far. And if Christine Blasey Ford refuses to show up for the hearing and stands only on statements that aren’t under oath or to federal investigators, that would, and should, be the last straw.

 

Dan McLaughlin — Dan McLaughlin is an attorney practicing securities and commercial litigation in New York City, and a contributing columnist at National Review Online.

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