I hesitated to spend a third day on this topic for my editorial, but I have chosen to do so for three reasons:
- It is a very dynamic story…developments and changes are happening that need further attention.
- It’s important. The Supreme Court has become the most powerful entity in our country. Wrongly, mind you, but it has none the less. It’s important to understand that in the context of what’s happening.
- People are still getting many things wrong that I feel a strong impulse to correct.
First, here are many of the current talking points being used by the Republicans and their tribe:
Kavanaugh has a right to face his accuser.
Yes, in our system of justice, that is a basic, underlying principle. The accused absolutely has a right to confront the accuser. However, that is our legal system for those that are accused (and charged) of a crime. This is not that. This is not a trial. Kavanaugh is not and will not be charged with anything. That’s the technical reality. In fairness, he should definitely be afforded the opportunity to present his side of the story, but don’t confuse this with criminal procedures and his rights under the 6th Amendment. This just doesn’t apply.
The investigation of this allegation is outside the jurisdiction of the FBI.
No, it’s not. The claim is that the FBI only investigates crimes and since this was 36 years ago, there would be no crime to investigate. Also, it would not be a federal crime, but rather, a local one. However, the investigation of this, in this context, would not be a criminal investigation. It would be a part of a background investigation on a potential Supreme Court Justice. The FBI is certainly involved and tasked with performing such investigations. To suggest that they “don’t want to get involved” is absurd. If the Judicial Committee believes that these allegations are serious and credible enough to delay their vote and hold further hearings, then they are serious enough for the FBI to conduct further background investigations of it to gather additional, specific information. They can’t have it both ways.
The accuser (Christine Blasey Ford) is changing the goal posts!
This claim is suggesting that since Ford previously said she was willing to testify to the Judicial Committee that she is now changing the goal posts by asking for the FBI to investigate before she does so. No, what she is doing is attempting to reduce the circus nature of a hearing that would happen with partisan Senators on both sides. Basically, we already know Ford’s version of events and we know that Kavanaugh categorically denies them. What’s to be gained by a hearing with no additional information, other than attempts to trip up both Ford and Kavanaugh from both sides…looking for a “gotcha moment” whether the moment is pertinent to the accusation or not? The Republicans will attempt to highlight Ford’s hatred of Trump and conservatives, while the Democrats will attempt to paint Kavanaugh as a wild, drunk teenage sexual predator. And we’ll learn nothing of value.
Diane Feinstein has held onto this for months and has only dropped it at the last minute because that’s how the Democrat Playbook works.
Maybe. But, maybe not. It’s a great talking point and really gets their supporters riled, but I don’t buy in to that at all.
It makes perfect sense to me that the accuser (Ford) may not have ever wanted to have to come out in public over this. She may have provided the information and instructed it as a “last resort” option.
If the allegations are true, it’s understandable that she would not want Kavanaugh confirmed under any circumstances. It’s also understandable that she would prefer that he not be confirmed for other reasons so she would not have to become embroiled in it.
Therefore, it may very well have been a case where she said, “only use my letter if and when it appears that nothing else will stop his confirmation.”
And to me, that seems very reasonable and there would be nothing nefarious in dropping the letter at the “11th Hour” in that case.
Kavanaugh has a lot of people lining up to vouch for his character.
That’s great, but it doesn’t really prove anything. How many times have we watched on the news of an arrest of someone who has done something horrendous, only to hear from shocked friends, family, and neighbors about how “out of character” it is. I could come up with tons of people who would vouch for my character throughout my entire adult life who would be shocked about my character in high school. And I could find many people from high school who would vouch that they never heard or saw me do anything of concern. But if you were to ask the “right, select few”, they’d be able to tell you some stories, for sure. Now, maybe the FBI has already determined that Kavanaugh was pristine in high school through previous background checks. But, did they interview the “right, select few” that are now maybe coming to light? And would interviewing these people concerning a specific incident like this change some answers? We don’t know.
We just can’t allow a good man to be falsely accused.
This is the dilemma. It’s not fair to Kavanaugh if this really is just a lie made up by Ford as a dirty political trick. His life could be ruined by a false allegation and that is certainly not right and would need justice in it’s own right. But what if it’s not? If we use this reasoning, then wouldn’t that mean that we must simply dismiss every allegation a woman makes about any such activity? After all, they all might be lying. Kavanaugh’s remedy, as with all cases of potential libelous activity, is to bring legal action against Ford if it is found that she has been lying about this. That’s the best our legal system of justice can do to be fair to both sides in such a case.
How the Republicans Should Proceed
There really is only one, legitimate way forward. They need to task the FBI to reopen the background investigation and go out and ask some specific questions of some specific people in order to attempt to gather more information. They may come back and say that they can find no information whatsoever to corroborate Ford’s story and in numerous interviews there were no other such accusations leveled against Kavanaugh. In that case, I don’t see how Ford’s story can be used to thwart Kavanaugh’s confirmation. However, Ford must also present her story under oath and Kavanaugh must present his denials under oath.
As part of the investigation, the FBI should question Ford and Feinstein and the other Congresswoman, as well as anyone else involved, to determine exactly how these allegations came about and if there was some sort of nefarious plot concocted to destroy Kavanaugh’s appointment as well as his reputation. If so, to whatever extent each were involved, they should be prosecuted for conspiracy to interfere with a Constitutional procedure and lying under oath, or whatever such crime might cover such despicable actions.
If the Republican’s were really interested in taking this seriously and getting to the truth to the extent possible, here’s how it should go down:
- Ford should present her accusation under oath in a confidential, closed setting.
- Kavanaugh should present his denials under oath in a confidential, closed setting.
- The FBI should be tasked to investigate the claims including conducting a specific background investigation on Kavanaugh and an investigation of Ford as described above.
- Ford and Kavanaugh should then be asked to present their testimony in a public hearing, while the Committee has the report from the FBI and any additional information at their disposal.
- If either of them are shown to be lying, under oath, they should be charged and prosecuted.
If the Republicans push this through without a real investigation which is what it looks like they may be trying to do, they will do so at their own peril. Sure, their base would be very pleased with them, but the backlash would be far worse.
The Democrats can’t really lose here if the Republicans refuse to have the FBI investigate. They may lose this battle for this SCOTUS appointment, but it will be just one more arrow in their quiver when they regain control and want to settle some scores. It will be one more issue to point to in order to turn out their voters. It will ultimately be one more reason that they will use to explain how the Supreme Court has been hijacked by the Republicans and, therefore, why they have a mandate to correct it.
They should think this through very carefully.