This afternoon, Christine Blasey Ford’s attorney responded to Senate Judiciary Committee chairman Charles Grassley’s request for therapists notes and polygraph data with a blunt no. She said she would only turn them over to the FBI “when she is interviewed.”
Ford’s lawyers tell Grassley that they will provide her therapy notes, polygraph data to the FBI once she is interviewed (that hasn’t happened as of now) pic.twitter.com/t1N6jhDPwE
— Seung Min Kim (@seungminkim) October 3, 2018
This is a serious problem, and it undercuts any effort to prove her claims against Brett Kavanaugh. The American legal system is characterized by mandated transparency. In criminal cases, the prosecution is required to release exculpatory information. In other words, it can be required to undercut its own case. In civil litigation, parties are generally required to turn over not just all relevant, non-privileged documents to the other side, they’re required to also turn over all documents that could lead to the discovery of relevant information. That’s one reason why the decision to litigate should never be taken lightly. File a lawsuit, and you’re opening the book on your life.
Of course, Christine Blasey Ford didn’t file a suit against Kavanaugh, but her decision to withhold (at least for now) runs headlong against these traditions of justice and fairness. In our system, you can’t use documents like therapy notes or polygraph records as a sword and a shield. It’s fundamentally unjust to release only those portions of a record that support your case (the sword) while hiding behind the sensitivity of the remaining records to justify withholding the rest (the shield).
This policy is vitally important for the fact-finding process. Ford’s failure is all the more troubling given that she’s not even promising to turn them over to the FBI unconditionally. And keep in mind that if she turns over the records, there is nothing stopping her from including a written explanation of their contents, including an explanation of perceived inconsistencies or damaging excerpts.
Moreover, let’s not forget that the FBI is not the relevant decision-maker. The Senate is rendering final judgment on Kavanaugh’s confirmation, and this action disrespects the entity that’s constitutionally entitled to render its advice and (perhaps) its consent. In civil litigation, the persistent failure to turn over relevant information can lead to dismissal of a plaintiff’s case. In criminal cases, the failure to release exculpatory evidence can overturn convictions. Here, at the very least, the reluctance to cooperate should adversely impact the Senate’s consideration of Ford’s very serious claims.