Law & the Courts

What We Still Don’t Know About the New Kavanaugh Allegation

The exterior of the U.S. Supreme Court in Washington DC (Sarah Silbiger/Reuters)
The authors of the New York Times article fail to answer simple questions, making the claim look more like a smear than journalism.

The New York Times set off a firestorm on Saturday evening when it published an essay, adapted from a new book by Times reporters Kate Kelly and Robin Pogrebin, in which the authors report that during Brett Kavanaugh’s freshman year at Yale, a classmate named Max Stier allegedly “saw Mr. Kavanaugh with his pants down at a different drunken dorm party, where friends pushed his penis into the hand of a female student.”

The New York Times story led several Democratic presidential candidates, including Elizabeth Warren, Kamala Harris, and Bernie Sanders, to call for Justice Kavanaugh’s impeachment.

But, in an egregious case of journalistic malpractice, the New York Times essay failed to originally report, as the book does, that the alleged victim has told friends she has no memory of this alleged incident.

This crucial fact made the accusation so flimsy that the New York Times news pages reportedly rejected a story on the accusation, and the Washington Post did not publish a story on the accusation a year ago, in part “because the woman who was said to be involved declined to comment.”

Some liberal writers, such as Slate’s Dahlia Lithwick, are critical of the New York Times because it “buried breaking news” about Kavanaugh. But in book reviews published Saturday by liberal feminist writers Jill Filipovic in the Washington Post and Hanna Rosin in the New York Times, both of whom were given early access to the book, neither even mentioned the new allegation.

The Times almost certainly would not have updated its story late Sunday night to add the crucial missing fact if Mollie Hemingway of The Federalist had not obtained a copy of the book and reported the omission on Sunday morning.

Pogrebin and Kelly have blamed the omission of this exculpatory information on the editing process and claimed that they provide a fuller picture in their book. But in their nearly 300 pages, the authors spend just a couple of paragraphs on the accusation.

Max Stier “had seen a drunk Kavanaugh with his pants down at another freshman-year party where his friends brought Ramirez’s drunk friend [redacted] over and put Kavanaugh’s penis in her hand,” Pogrebin and Kelly write in their book.

Pogrebin and Kelly call Stier a respected nonpartisan “thought leader” in their book, but they do not inform readers that Stier did work for President Bill Clinton in the 1990s and that his wife’s judicial nomination died in 2016 because of the Republican-controlled Senate.

“At least one other Yale student remembered hearing that [the female student] had transferred out of Stiles residential college at Yale because of Kavanaugh, though exactly why was unclear,” Pogrebin and Kelly write. The female student “has also refused to discuss the incident, though several of her friends said she does not recall it.”

It doesn’t seem remotely plausible that the female student would have transferred over an incident she cannot remember. Nevertheless, Ronan Farrow tweeted that Pogrebin and Kelly have “documented another serious claim of misconduct with an eyewitness.”

Here’s a question that has not yet been answered: Does Max Stier, the alleged eyewitness of this alleged incident, even claim that Kavanaugh was a willing participant in this alleged sexual assault? Did Kavanaugh allegedly consent to have his “friends,” plural, “push his penis”? If he did not consent, wouldn’t that mean that both he and the female student were both victims of this alleged assault committed by the “friends”?

National Review left a message with Stier’s assistant asking whether he is claiming that Kavanaugh was a willing participant in this alleged assault. Stier’s office has not replied. The same question was posed in an email to the communications director of Senator Chris Coons (D., Del.), who informed the FBI of Stier’s accusation last year. Coons’s office has not replied.

National Review has also asked a representative of Pogrebin and Kelly’s book publisher whether Stier is alleging that Kavanaugh was a willing participant in this assault and whether the authors have corroborated the allegation with anyone at the alleged party besides Stier. The representative of Penguin Random House, who had been communicative by email, has not replied to either question.

The Stier allegation is not the only time in the book that the authors fail to exercise due diligence in corroborating claims. “In the days before the September 27 hearing, at least two men had come forward to share stories of how they had ‘kissed’ or ‘made out’ with a young girl in the 1980s whom they now believed to be [Christine Blasey] Ford,” Pogrebin and Kelly write. “One of them said she had been wearing a bathing suit under her clothes at the time of the hookup and that ‘the kissing ended when a friend jumped on them as a joke.’”

The authors just toss these claims out there, treating them as newsworthy simply because the committee heard the anonymous stories. They give no indication they have identified who these men are or whether their claims might be plausible. They fail to inform readers that Senate Judiciary Committee member Lindsey Graham said in September 2018, “One’s crazy as a loon, I don’t believe the other one.” (I have sought comment from Graham about why he came to this conclusion, but have not received a reply.)

In the same way, the authors just toss Stier’s claim out there, treating it as newsworthy simply because the FBI heard about it. Have they identified the “friends” Stier alleges committed a sexual assault? Does Stier even allege that Kavanaugh was a willing participant in this alleged assault? Have Pogrebin and Kelly corroborated Stier’s claim with anyone at the alleged party?

The authors owe readers answers to these basic questions.


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