Published 9:12 AM EDT Oct 1, 2018
I watched the entire Senate Judiciary Committee proceeding Thursday and felt disgusted by the farcical process that was not designed to get at the truth. I felt the same disgust Friday when the committee voted along party lines to advance Judge Brett Kavanaugh's Supreme Court nomination, although the call for an FBI investigation by Sen. Jeff Flake, R-Ariz. was heartening.
If done well, the investigation should buttress Dr. Christine Blasey Ford’s testimony without undermining the facts that make Ford more credible. Consider why:
It is unlikely the FBI’s investigation will find that Ford had any reason to lie. The investigation will likely disclose no professional incentive to sensationalize her role in this matter and no collusion with Democratic operatives to invent a story to serve political ends. By contrast, an FBI investigation will not undermine the fact that Kavanaugh has many reasons to lie.
Kavanaugh's case is far from airtight
First, this act of sexual assault, if established, would certainly humiliate him. He is a father of two girls. He coaches girls’ basketball. He envisions himself as a supporter of women. He cites these facts as proof that he didn’t do the act of sexual assault, but these facts didn't exist at the time of the act. Rather, they establish why he can’t admit what might have occurred.
Second, his prior denials locked him into a position; he would be committing a crime if he changed his story and conceded that it might have happened.
Third, a seat on the Supreme Court is at stake. Kavanaugh's alleged teenage behavior, if true, could disqualify him.
Fourth, men who deny allegations seem to do okay. Look at Supreme Court Justice Clarence Thomas and President Donald Trump. Kavanaugh might have thought, as a federal judge, that he’d be more credible than a woman who has been in therapy, especially in a process that kept out so much potential evidence. Those facts, which were discussed at the hearing, gave him an incentive to lie.
Nor will the FBI investigation change the fact that the acts he is accused of seem possible in context. The sort of sexual assault Ford alleges, as bad as it is today, was not as reprehensible in the early 1980s, especially among teenage boys. The incident occurred long before notions of affirmative consent.
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What the FBI investigation can do is probe the evidence that Kavanaugh offered to prove his innocence. It may reveal that his calendar did not cover the right months or years, or that it potentially supports Ford's account. The FBI should determine when Mark Judge, whom Ford alleges was in the room at the time of the assault, worked at a grocery store. Ford stated that she bumped into Judge at that grocery store only a few weeks after the alleged assault.
An FBI investigation can assess whether Kavanaugh recorded on his calendar every gathering he attended. If he did not, then his claim that the gathering was not on his calendar has no significance. Yet even if he recorded all the other events of the summer, Kavanaugh said his calendar was a diary that he notated after some events. Why would he go back and memorialize a gathering where he tried to rape someone? An FBI investigation won’t negate the possibility that it was intentionally omitted.
An FBI investigation may make the affidavits Kavanaugh referred to in support of his position less helpful. Leland Keyser, whom Ford says attended the party, wrote in her statement to the committee that she does not recall the party Ford describes, yet Keyser says publicly that she believes Ford. The FBI interview should reveal why she believes Ford. Ford referred to Keyser's health issues and the FBI interview may help Ford here, too.
Judge is obviously a key witness, but he may have his own reasons to protect Kavanaugh. If Judge was, in fact, in the room during the assault, he might be an accessory to sexual assault and have every reason to deny that there was a gathering. Because lying to the FBI is a crime, he might plead the Fifth Amendment if the event occurred.
Also, it is possible that he and Kavanaugh are simply misremembering the evening, especially if they were drinking. A statement helpful to Kavanaugh from Judge will be meaningless without an assessment of Judge’s credibility, and, as Kavanaugh stated, the FBI does not reach conclusions. It is up to the Senate to assess credibility.
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Ford’s evidence is certainly meaningful. It was compelling that she made statements, years before Kavanaugh’s nomination, to her therapist and husband. She took a polygraph test. Kavanaugh never took one. Her testimony had all the hallmarks of credibility. An FBI investigation will not change any of these facts.
The FBI investigation will likely be pivotal if and when it explores Kavanaugh’s statements about his drinking. There was no testimony at the hearing about Kavanaugh’s drinking habits other than from him. Others, however, might rebut his claim that he was not belligerent or without memory. Apparently, his drinking in college is legendary. If more information emerged, it would likely support Ford’s story because it would show Kavanaugh wasn’t honest.
If information emerges that contradicts Kavanaugh’s testimony, senators will have another reason not to confirm him. If Kavanaugh lied under oath about collateral matters (such as the extent or effects of his drinking), he is unfit to be on the Supreme Court, regardless of whether he treats women well today or the allegations from other women are false. He would also be unfit to be a member of the Bar.
It is now the FBI's responsibility to discover the evidence that can lead us to the truth.
Merle H. Weiner is the Philip H. Knight Professor of Law at the University of Oregon School of Law and faculty director of the school’s Domestic Violence Clinic. She has worked on legal issues related to domestic and sexual violence for over 25 years.