The Corner

Law & the Courts

Oh, What a Tangled Web

Sen. Dianne Feinstein (D, Calif.) on Capitol Hill in Washington, D.C., July 24, 2018. (Aaron P. Bernstein/Reuters)

The likely justification of the Republican majority for agreeing to a rehearing of the Kavanaugh nomination was political, not legal: Senate Republicans apparently worried that in-party potential No-voters on Kavanaugh, such as Senators Corker, Flake, or Collins, might become emboldened by an outright refusal to hear Professor Ford’s narratives or that independent women voters would be alienated by “silencing” the accuser.

Otherwise, a constitutional state with an independent judiciary, cannot long continue if it institutionalizes the idea that an accuser can raise charges of 36 years past, without current knowledge when or where the alleged crime took place, without consistent accounts of how many males were allegedly involved, without any witnesses that might contradict the denials of the accused, and without either physical evidence or any proof of a pattern of subsequent such violent behavior from Kavanaugh.

No district attorney would consider pursuing such charges, because to do so would mean that we no longer live in a lawful society but have so politicized the legal system that anyone at any time can prompt criminal investigations without any evidence other than one’s incomplete or indeed faulty memory of something that happened 36 prior.

The crude machinations of Senator Feinstein, which now follow belated disclosures that the former head of the Senate Intelligence Committee had hired a Chinese spy as her chauffeur and gofer for 20 years at a time her husband had extensive business interests in China, have sadly nearly ruined her reputation in the twilight of her career. For months, she banked an anonymous complaint, and kept it hidden from both the soon-to-be-accused and the Senate committee at large.

Then, after the hearings were over and it was likely that Kavanaugh would shortly be confirmed, she pulled out the eleventh-hour anonymous letter as if it had always been some sort of “insurance” — analogous, perhaps, to what the Washington FBI echelon may have thought the Steele dossier might do to Trump if released.

Feinstein hoped that her floating of anonymous charges might spark enough further hysteria to have sidetracked the nomination, of course, without the liability of Anonymous facing any cross-questioning. Then the hoped-for delay in the vote, until after the election, would exempt a few Democratic senators in Trump states from being on the spot in voting against Kavanaugh.

But as the Republican pushback mounted against Anonymous’s charges, and as rumors were leaked about her identity, her credibility, and especially her progressive and activist views, Dr. Blasey Ford, apparently, was forced to step forward and the entire gambit went off script — no doubt to the chagrin of the co-author of this intrigue, the increasingly inept Dianne Feinstein.

Still, Feinstein was probably not idle during the months that she hid the original anonymous complaint: Long ago, she likely had concluded that accusations would evaporate under any serious examination and thus should be used with the lightest touch of seeding innuendo and rumor — and only in extremis.

So it all blew up. Now the very promulgator of airing the unsubstantiated charges can only fumble about, claiming that she is not sure if all the allegations found in the very letter — which she once wished might destroy Brett Kavanaugh — are now even true. Feinstein was likely never eager to have Dr. Ford to go into detail about her accusations.

After all, what would Dr. Ford say if questioned — something along the lines that 36 years ago she was assaulted by Brett Kavanaugh, but cannot remember when or where or how many others accompanied him, or why she did not notify authorities in the ensuing four decades, or cannot explain why her statement of seeking “medical treatment” referred to her visit to a therapist, 30 years later, concerning relationship therapy, not an emergency room or family doctor after the alleged assault, or why her therapist’s notes do not corroborate her narrative.

The only likely remedy for those lacunae in her narrative would be some sort of extraordinary memory “recovery” in the next few days that miraculously provides names, places, and dates, or more likely increased pressure on Senate Republicans to agree to a preposterous FBI “investigation” that would de facto brand her charges as credible enough for such efforts, or to demand private interviews — as if the accuser can adjudicate the conditions under which the government will investigate her charges. Imagine the jurisprudence precedent: “I accuse Mr. X, and these are my ground rules under which your government agency will pursue my charge.”

In sum, the ripples from Feinstein’s stunt are substantial and not good for progressives.

If we are to consider anyone in legal jeopardy due to an initially anonymous letter dealing with an allegation about something 36 years past, then surely we much more easily can damn without evidence far more recent accusations, whether concerning Keith Ellison’s alleged domestic violence, or Bill Clinton’s reported Lolita Express antics, or Joe Biden’s photographed creepy, too-long hugs and “reported” nude swimming in front of female Secret Service agents — and that would be the mere beginning of such a spiral.

At some point, realists in the Democratic party should wise up and cut their losses before they turn off too many more voters on the eve of the midterms, while exposing far more of their own to charges with a lot more credibility than Dr. Ford’s. Recently, progressive grandees such as Cory Booker, Kamala Harris, Bernie Sanders, and Joe Biden (“dregs of society”) have become unglued in the general excitement and offered bizarre rants and venom.

The media has been forced to backtrack on many of its allegations. Headlines blare the alleged Blasey Ford quote, “I thought he might kill me,” while the text below reads instead, “I thought he might inadvertently kill me.” And on and on. The result is a circus that substantiates the charge of “fake news” all the more.

Perhaps the Kavanaugh freakish hearing, the distortion of the McCain funeral, the New York Times anonymous op-ed, the Bob Woodward hit book, the Biden rants, Hillary Clinton’s weigh-ins on sexual assault, and the petulant return of Barack Obama to the campaign trail will rouse the progressive base to the polls.

But the effect may just as likely be to confirm a picture of unsympathetic and venomous people that will rouse Trump voters and remind independents that the alternative to Trump is empowering the sorts who staged the confirmation-hearing madness and are doing their best to ruin an exemplary and brilliant judge, whose only crime is that he likely will not, as a future Supreme Court justice, always agree with the agendas of a Cory Booker, Dianne Feinstein, Kamala Harris, or Elizabeth Warren — and therefore warrants being destroyed by any means necessary to achieve noble progressive ends.

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