The Morning Jolt

Law & the Courts

Nine Things to Know on Senate Judiciary Committee Hearing Day

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

You knew the night before Christine Blasey Ford testified in front of the Senate Judiciary Committee that a lot of partisans and reporters would unveil the news they had been holding onto all along. Last night was an avalanche. Grab a cup of coffee, because sorting through all of this might take a while.

One: Let’s start with the two men coming forward and separately claiming that they think they were the ones who encountered Ford at that party in 1982:

However, the unidentified men in question told the committee in separate interviews that they, not Kavanaugh, were the one who had the encounter with Ford in the summer of 1982 that is the basis of her claim, the committee wrote in a timeline of the investigation.

One of the men produced a detailed written statement about his recollection of the evening.

Ford will no doubt claim that she’s certain it was Kavanaugh. But she’ll be insisting that her memory — after consuming a beer in her teen years and after 36 years — is correct, when all four people she named at the party (Kavanaugh, Mark Judge, P.J. Smith, and Leland Keyser) have no memory of attending the party, and two other men have come forward and claimed that they’re the guys who had an encounter that matches her description. Either it’s a vast conspiracy to discredit her or she simply isn’t accurately remembering the man who allegedly attacked her.

Keep in mind, there is no statute of limitations for a charge of rape in Maryland.

Two: A Rhode Island man contacted Senator Sheldon Whitehouse and claimed that his friend had been assaulted by Kavanaugh in 1985. Last night the man recanted and apologized: “Do [I think he meant “to”] everyone who is going crazy about what I had said I have recanted because I have made a mistake and apologize for such mistake.”

Three: Senator Kamala Harris wanted the FBI to investigate an anonymous accusation of rape. No date, no location, no name of the accuser.

Four: A separate anonymous allegation was sent to Senator Cory Gardner’s office:

 An anonymous woman wrote to Sen. Cory Gardner’s (R-Colo.) office on Sept. 22 alleging that the Supreme Court nominee shoved another woman “up against the wall very aggressively and sexually” in 1998 after leaving a bar where both had been drinking, the transcript states. Kavanaugh denied any involvement in the events alleged in that complaint, which was first reported by NBC. 

Beckett Adams summarizes:

“An anonymous letter quoting anonymous sources regarding a supposed assault on an anonymous woman who wishes to remain anonymous. The author of the letter isn’t talking about herself. She’s not even talking about her supposed daughter. She’s speaking on behalf of her alleged daughter’s alleged friend who is the alleged victim of an event the accuser did not herself witness.”

Five: Ford’s lawyers released the polygraph that she took, and quite a few people were surprised that it consisted of only two questions. You’ll recall that because of their inadmissibility in court and the claims that practice and relaxation exercises can help you beat a lie-detector test, I don’t put a lot of stock into them either way.

But law professor Jonathan Turley finds this one particularly odd and unilluminating:

The passage of a polygraph by Christine Blasey Ford has been a key factor for many in believing her story — a fact cited by various members of Congress.  New details of the polygraph however have been released and some contradictions are being cited within Ford’s account. However, my main interest is the polygraph itself, which does not sound like any legitimate polygraph that I have encountered. I have handled a number of polygraph cases in my career and the description of these questions are nothing short of bizarre as a reliable test.

The examination was administered by former FBI agent Jeremiah Hanafin in a Hilton hotel in Maryland.  It appears that Hanafin worked off a handwritten statement that Ford signed.  That statement refers to “4 boys and a couple of girls” at the party.  That is different from her account to the Committee that the party consisted of “me and 4 others.”

… The most notable aspect of the story however is the only two “relevant” questions asked by Hanafin “Is any part of your statement false?” and “Did you make up any part of your statement?”

Those questions would be effectively useless in an actual case.  Good polygraphers ask specific, clear, insular questions.  They do not use overarching language.  He did not ask specific questions on whether she was assaulted by Kavanaugh — a rather curious omission.

It is not natural way to frame such an examination and the question is whether the examination was framed or limited by Ford’s counsel.  I have never met a polygrapher who would structure questions like these for use in a test.

If this is truly the content of the examination, I would view it as largely useless in an actual case.

Six: Separate from the “how many people were at the party?” discrepancy, there’s another contradiction in Ford’s story. From her account to the Washington Post:

When Donald Trump won his upset presidential victory in 2016, Christine Blasey Ford’s thoughts quickly turned to a name most Americans had never heard of but one that had unsettled her for years: Brett M. Kavanaugh.

Kavanaugh — a judge on the prestigious U.S. Court of Appeals for the District of Columbia Circuit — was among those mentioned as a possible replacement for Supreme Court Justice Antonin Scalia, who died in 2016. When Trump nominated Neil M. Gorsuch, Ford was relieved but still uneasy.

But he wasn’t among those mentioned as a possible replacement for Scalia. Kavanaugh wasn’t on Trump’s list of potential Supreme Court nominees in 2016, and he was only added in November 2017.

Seven: The New York Times did a long profile of the second accuser, Deborah Ramirez, without the cooperation of the subject and includes this interesting detail:

Some of her closest Yale friends said they lost touch with Ms. Ramirez in the last decade. That was in part because she became more politically liberal and conscious of her Latino roots and no longer felt as comfortable among her Yale cohort, several friends said she told them.

I’m reminded of Anna Eshoo’s claim that Ford “didn’t have a political bone in her body,” a statement that, from what we already know, is only true in the biological sense. Again, the partisan affiliation and ideological beliefs of the accusers does not make them any more or less credible, but dishonesty about those partisan affiliations and ideological beliefs does make them seem less credible.

Eight: Then there’s Michael Avenatti and the literally unbelievable claims of his client, Julie Swetnick.

As Jonah points out:

 At this stage I think it is a sure bet that the New York Times, the Washington Post, and countless other media outlets have talked to, or tried to talk to, every single person of consequence in Brett Kavanaugh’s high-school and college life. And yet, until celebrity porn lawyer Michael Avenatti and his client went public with these charges, not a single news outlet had found — or at least reported — any hint that it was just about an open secret that Kavanaugh was part of a crowd where organized rape gangs acted with impunity.

If we must believe Ms. Swetnick, we must also believe that the best journalistic outlets in America completely missed this story. (We also must believe that the FBI as well as the Democratic party’s best opposition researchers missed it too.)

Last night brought a lot of new information about Avenatti’s client. None of these revelations are definitively proof that Swetnick is lying, but they create complications for her credibility.

Perhaps most seriously, an ex-boyfriend filed a restraining order against Swetnick:

“Right after I broke up with her, she was threatening my family, threatening my wife and threatening to do harm to my baby at that time,” Richard Vinneccy said in a telephone interview with POLITICO. “I know a lot about her. She’s not credible at all.”

Webtrends Corporation filed a defamation suit against her in 2000, but the case was dismissed without any court costs or attorney fees incurred to either party. She has two tax liens in recent years from the state of Maryland and the IRS for a combined total of more than $100,000, but they were eventually paid.

She filed a personal-injury negligence case against the D.C. Metro system in1994. The case was dismissed without prejudice three years later.

Nine: Avenatti says his client will not testify before the Senate Judiciary Committee until an FBI investigation is complete. Meanwhile, she did an interview with Showtime.

ADDENDUM: It says something about our political environment that President Trump can give an 81-minute press conference and that’s not even the wildest news of the day.

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