Law & the Courts

The Kavanaugh Smear

Supreme Court nominee Judge Brett Kavanaugh at his Senate Judiciary Committee confirmation hearing, September 4, 2018. (Chris Wattie/Reuters)

Brett Kavanaugh acquitted himself ably in his confirmation hearings last week, which is surely one reason that Democrats have resorted to a contemptible attack on him as guilty of federal crimes.

Democrats are smearing the nominee as a perjurer. There are three main allegations, and each is laughably frivolous.

First, critics have accused him of lying under oath when he said in Senate testimony in 2004 that he was “not involved in handling” William Pryor’s nomination to the Court of Appeals for the Eleventh Circuit because various documents indicate that he played some role in supporting Pryor’s quest for confirmation.

To make the perjury claim, activists rip two words (“not involved”) not just out of context from his larger testimony, but out of context from the sentence itself. Some background is necessary. In the George W. Bush administration, different lawyers in the White House counsel’s office were assigned different circuits as their primary responsibility. They “handled” only nominations within that portfolio. That did not mean that they had no involvement at all with other nominations, only that those nominations weren’t their ultimate responsibility.

It turns out that Kavanaugh explained much of this to the Senate. He clearly said that he was not assigned the Pryor nomination, but he also said that he may have helped the nomination in other ways, including by attending a moot-court session. In other words, he never testified that he was not involved at all in the Pryor nomination, just that it was not his to handle.

Simply put, there is simply no credible argument that this was anything other than truthful testimony. It’s a partisan smear spread to partisan hacks who either don’t know or don’t care about the governing legal standards.

And so is the next perjury claim, that he lied about his knowledge of “memogate,” an old and largely forgotten controversy from George W. Bush’s first term. A former Republican Senate staffer, Manuel Miranda, took confidential Democratic documents from a shared server. As Above the Law founder David Lat explained in an invaluable Twitter thread, Miranda exploited a “glitch” to gain access to Democratic communications and Democratic strategies. At issue is the classic Washington question: What did Kavanaugh know, and when did he know it?

During Kavanaugh’s Senate testimony in 2004, Orrin Hatch asked him if he had received “any documents that appeared to you to have been drafted or prepared by Democratic staff members of the Senate Judiciary Committee.” Kavanaugh said no. In 2006, Ted Kennedy asked him about the same documents, and Kavanaugh issued another denial, saying, “I don’t know what the universe of memos might be, but I do know that I never received any memos, was not aware of any such memos.”

At the same time, however, Kavanaugh was careful to say that he might have unknowingly seen information “derived” from the memos. So, to be clear, to demonstrate perjury the Democrats would have to show clearly and unequivocally that Kavanaugh didn’t just see information taken from the memos but that he clearly and knowingly viewed the actual memos themselves.

So, what’s the evidence that Kavanaugh lied? Try not to laugh. First, and most “damaging” is an email with the subject header “spying” from an entirely different staffer — Barbara Ledeen — who claims she had “a friend who is a mole for us on the Left.”

What’s missing from that email? Any memoranda from Miranda. Indeed, there’s no communication from Miranda at all, just purported inside information from a “friend” across the aisle. Gossipy insider info is routinely exchanged in Washington, and the nature of the information in the email — regarding multi-million dollar contributions — hardly screams “secret!”

And that’s the alleged smoking gun.

As for the rest of the alleged evidence? It consists of emails that, on their face, showed no indications that they contained stolen information. And let’s go back to Kavanaugh’s key, allegedly incriminating statement. While hedging that he doesn’t know what the “universe of memos might be,” he also says, “I never received any memos.” There is not a single email or document showing that he actually received a stolen memo, much less that he did so knowingly.

The evidence of perjury is so lacking that even a panel of experts convened by Vox concluded that there was no crime. Professor Miriam Baer of Brooklyn Law School put her objection bluntly. “I don’t see any lie,” she said. She can’t see any lie because there was no lie.

Finally, there is also a bizarre claim circulating that Kavanaugh lied under oath in his previous testimony about his role in Bush-era detainee-treatment policies. In 2002, Kavanaugh was involved in a “contentious meeting” about detainees and was apparently asked how Justice Kennedy would likely rule on the question of whether unlawful enemy combatants should be granted access to counsel.

Democrats — namely Dick Durbin — have cried foul, claiming that this involvement conflicts with his previous testimony that he “was not involved” in “the questions in the rules governing detention of combatants.” And what were “the questions”? Once again, the invaluable David Lat has the relevant details.

The questions involved specific “abusive interrogation techniques” — techniques that no one claims Kavanaugh helped craft and that Kavanaugh has testified he wasn’t “read into.” Durbin is ripping Kavanaugh’s answer completely out of context.

Not one of these perjury allegations passes the most basic test of actual criminality, yet — aside from Vox’s admirable and honest reservations — the vaunted fact-checkers of the mainstream media have remained silent. The online Left is filling the void with angry denunciations of anyone — including respected Brookings fellow and Lawfare editor-in-chief Benjamin Wittes — who dares fairly analyze the law and the facts and reach the only reasonable conclusion: Brett Kavanaugh did not commit perjury.

There is one final irony in this sad tale of a failed smear. Many of the same people who helped the bogus perjury claims go viral then turned around and spread a blatant lie about Kavanaugh — that he called contraceptives “abortion-inducing drugs.”

False. If you watch the very video that NARAL attaches, he was clearly and plainly stating the position of Priests for Life, the plaintiff in the case, not his own position.

The old Bob Dole line is apt in all this: Stop lying about Brett Kavanaugh’s record. But Democrats aren’t going to do that, because the lies are all that they have.



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