Law & the Courts

The Perjury Farce

Brett Kavanaugh swears in before testifying before the Senate Judiciary committee regarding sexual assault allegations on Capitol Hill in Washington, D.C., September 27, 2018. (Erin Schaff/Reuters )

Taking advantage of the pause forced by Jeff Flake’s change of heart last week, opponents of Brett Kavanaugh have shifted their focus from the original charge of sexual assault to the allegation that he repeatedly perjured himself before the Senate Judiciary Committee. It’s certainly true that Kavanaugh tried to minimize the least admirable aspects of his adolescence — understandably, given the withering fire he was under and the basic irrelevance of the matters under discussion — but there is no evidence he lied.

Much of the focus is on his drinking. There are two main lines of argument here. The first: Kavanaugh has misleadingly portrayed himself as a “squeaky clean” “choir boy,” but there is plenty of evidence that he was a heavy drinker. This begins from a false premise. Kavanaugh has said he was pious and hardworking in high school and college, but he also said in his Senate testimony that he drank excessively on occasion: “I drank beer with my friends. Almost everyone did. Sometimes I had too many beers. Sometimes others did.” Drinking in high school and college is obviously compatible with attending church or participating in community service.

The more relevant question is not whether Kavanaugh drank to excess, but whether he drank to the point of blacking out. Democrats want to establish that if he blacked out once, he may have blacked out at the alleged party with Ford and assaulted her while having no memory of it. This itself is a stretch and obviously a way to try to make up for the fact that there is no corroborating evidence of the assault.

The media have pointed to testimony from high-school and college classmates who say they saw him “belligerently” or “incoherently” drunk, phrases in his high-school yearbook page that appear to imply lapses in memory (“Who won that game, anyway?”), and passages from his friend Mark Judge’s memoir involving a character named “Bart O’Kavanaugh.” None of this establishes that Kavanaugh blacked out, though, only that he drank to excess, which, again, he admitted.

The most ridiculous tranche of perjury allegations have to do with Kavanaugh’s yearbook entry. Our own Jim Geraghty christens the people obsessed with his entry “the boof sleuths,” after one of the slang terms that appears, “boof.” Also, at issue: the terms “Devil’s Triangle” and “Renate Alumnius.” It doesn’t require stepping back very far to realize how preposterous it is that teenage tomfoolery in a high-school yearbook is now deemed relevant to the ascension of a D.C. Circuit judge to the U.S. Supreme Court.

Kavanaugh told the Senate that “Judge — Have You Boofed Yet?” refers to flatulence, and that “Devil’s Triangle” refers to a drinking game. His critics insist that the former means anal sex and the latter three-way sex. Since slang by its nature is informal and ever-changing, this stupid dispute is never going to be settled to anyone’s satisfaction.

As for “Renate Alumnius,” Renate Dolphin, the woman to whom it refers, has gone on record taking offense at the comment, and a plausible reading of it is that it was innuendo. Kavanaugh called the phrase a “clumsy” way to “show affection” and denied that they ever had sexual relations. But he expressed regret over the phrase and in general said he was embarrassed by his yearbook, calling it a “disaster” and noting that it was an “absurdity” meant to conjure the movies Animal House, Caddyshack, and Fast Times at Ridgemont High.

None of this comes close to rising to the level of perjury. And none of it, despite the hopes of his enemies, substitutes for the weakness of Christine Blasey Ford’s original charge.

None of the people Ford identifies as witnesses to her story say that they recall the party. (Another perjury charge against Kavanaugh is that he exaggerates how exculpatory these witnesses are, but this makes him guilty of slight error, not deceit.) As a report outlined by Judiciary Committee outside counsel Rachel Mitchell makes clear, Ford has repeatedly changed some key details of her account and cannot remember others. (If Kavanaugh had similar slip-ups, the critics would be crying “perjury” about that too.) Mitchell argues that Ford’s allegation does not meet even a preponderance-of-the-evidence standard.

The case against Kavanaugh is constantly changing, but one thing has stayed the same: Democrats will make any argument, no matter how implausible or over-the-top, to try to sink him.


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