Here’s a significant item from Rachel Mitchell, the respected and experienced veteran sex crimes prosecutor from Arizona who questioned both Dr. Christine Blasey Ford and Judge Brett Kavanaugh on behalf of the Senate Judiciary Committee on Thursday last:
“Rachel Mitchell Memo Lists Weaknesses in Ford Claim: READ”
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Regarding that third (and already, by far, least credible) Kavanaugh accuser:
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Cassandra Showell Hedelius, a frequent and highly valued volunteer for the Interpreter Foundation until (hallelujah but alas!) the demands of young motherhood intervened, has been offering some very good Facebook comments on the matter of Dr. Ford and Judge Kavanaugh. I appreciate her perspective and, with her permission, I share three of her comments here:
1.
A few points.
(1) I’m agnostic on where the truth lies between Ford vs. Kavanaugh. What follows assumes a maximally charitable interpretation of each.
(2) Ford was treated horrifically by Feinstein. It’s horrific that this wasn’t dealt with confidentially, pre-judiciary hearing. Feinstein instead delayed in order to maximize media scrutiny and process disruption. The goal was to run out the clock for any possible Trump nomination, not to treat a serious accusation seriously. Which is fine as far as bare-knuckle politics goes, but we should all be clear about how a sexual assault survivor was used as pawn.
(3) “It’s just a job interview.” Nope. A job interview is what happened during the regular judiciary committee proceedings. No job interview has the potential to land you in jail, subject you to months of federal investigation (which is, let us recognize, extremely un-fun), force you out of your current job in disgrace, and permanently and prominently tar you as a moral monster in the eyes of the entire country. Plus carry the moral hazard of making it immensely more likely others who share your judicial philosophy will suffer the same fate. Let’s not be insultingly flip about what’s happening, no matter how disdainfully you view privileged white guys.
(4) “This is about Kavanaugh specifically, not conservative nominees generally, because Gorsuch.” Nope. There’s strategic opportunity here that was completely absent during the Gorsuch confirmation process, and opportunity determines strategy. With Gorsuch, there were no imminent midterms likely to flip Senate control. Therefore, there was nothing to be gained by delay via eleventh-hour accusation; instead, Democrats would have risked looking pointlessly obstructionist. Also, it matters that Gorsuch was replacing Scalia. It would have been more difficult to make a fair-sounding case that SCOTUS, which everyone knows is an exquisitely political super-legislature, should be shifted significantly leftward on Republicans’ watch because of the inconvenient timing of Scalia’s death.
(5) “Republicans could have just pulled Kavanaugh and submitted a better nominee.” Several issues here. First, moral hazard. If you reward bad behavior like Feinstein’s delay, you invite more of it. Second, you’d be inviting more of it strenuously and immediately, because we’re getting perilously close to midterms. Democrats would have huge incentive to pull another Feinsteinian move and run out the clock. They’ve already proven willing to fight dirty against runner-up Barrett, whom Feinstein basically declared unfit to serve due to an unconstitutional religious test during Barrett’s recent confirmation hearing. “Then Republicans should submit a nominee who’s more acceptable to Democrats.” Heh. This is about conservative nominees generally, not Kavanaugh specifically (see #4).
(6) “Kavanaugh’s treatment is only fair after what was done to Garland.” Heh. Sure. And bare-knuckle judicial politics only started in 2016, my sweet summer child. Both parties have grievances, and both sides are guilty. Just because you only started paying attention circa Garland doesn’t mean your righteous anger is more valid than Miguel Estrada’s. The lesson of Bork was that when the other party holds the Senate and doesn’t like the cut of the nominee’s jib, they won’t confirm him just to be cordial. Democrats made that bed, and Garland had to lie in it.
(7) “Just let the FBI investigate. If you were innocent, wouldn’t you want the FBI to clear your name?” Pardon me while I scoff my face off. Sorry, I’m back. After all the very necessary conversation we’ve had the last few years re the failures and systemic problems of law enforcement, suddenly people are seriously making this argument? An innocent person has nothing to fear from an intrusive investigation into the past 36 years of one’s life by the most powerful law enforcement agency in the history of democratic government? No. No no no no no no just no. Do not make this a thing. *Do not make this a thing.* You do *not* want a world where any nomination for high office can (and *will be*) stopped short by any minimally plausible accusation and can only proceed by submitting to an FBI investigation. That’s horrific. That’s not how you run a free society. You run a background check, you pass the background check, and if new information comes up you ask the FBI to update its background checking *in a timely manner.* Last-minute ambush accusations and “hey, just let us clear this up with a little federal criminal investigation” is an abhorrent precedent. One that could bite likely Dem nominees just as hard, or much harder, than Republican ones.
(7a) Plus, the FBI is, like all federal agencies, sclerotic and slow. We’re again into the moral hazard of delaying tactics, etc. All the blithe assurances that the FBI could totes wrap this up in a week or two are nuts, especially given that many potential witnesses would need to lawyer up (because they’re scurvy rapists? No, because *you never never never never never talk to the FBI without a lawyer ever never oh my gosh I’m going to blow an artery NEVER DO YOU HEAR ME?)
(7b) So what about someone like Ford–whom, you recall, I’m not at all impugning? What if she just wasn’t ready to make her accusation yet? The only way to balance the important interests of both justice and process is analogous to the statute of limitations: you have to make your claim within the time period that it can be fully and fairly dealt with. And it’s Feinstein’s fault that Ford’s was not. I’m sympathetic to the argument that it’s internally traumatic and personal to get ready to make an accusation like that. But for the reasons laid out above, there must be a time limit after which it’s no longer practicable to consider accusations against a nominee. Feinstein, upon receiving Ford’s intelligence, should have said “we need to submit this to the judiciary committee’s confidential investigative process right away, or else we’ll miss the window for it to be fully considered as part of the Senate’s advisory role.” Instead, Feinstein said (or didn’t) “I’ma sit on this until it gives me maximum power to delay the confirmation vote up against the midterms, and maximum ability to create a national spectacle by forcing a sexual assault survivor into a public televised interrogation.” I rather doubt Feinstein explained her reasoning to Ford, and I rather feel Feinstein is a terrible human being for doing that to Ford.
I’m going to tyrannically moderate comments on this because I’m not out on everyone else’s page and stupid “Handmaiden” memes arguing and don’t feel like arguing a ton here. Be thoughtful and sane.
2.
I’m really pessimistic about this upcoming FBI investigation into Kavanaugh. It’s more of an extended background check than a criminal investigation. That means they won’t have the ability to subpoena or compel testimony. Which means the interviewees are going to lawyer up and say “haha nope, I have nothing to say to you.” Because even though it’s not a formal criminal investigation, it’s still the country’s most powerful investigative agency specifically looking for evidence of a crime. If you’re a dude who hosted a party recorded on Kavanaugh’s calendar, you’d be an idiot to talk about it. Because you’re giving criminal investigators material to work with to decide you were the accessory to a crime. So it’s literally the worst of both worlds: no authority to compel the evidence they need, but enough danger to make people clam up. A week won’t even be enough time to get through the preliminaries of “talk to my lawyer, I have nothing to say,” let alone scheduling and carrying out interviews.
The naivete here about how law enforcement works is understandable, but incredibly frustrating. So we get to the end of the week and the FBI says they have nothing meaningful–think that’ll heal the country and make everyone feel heard? When the FBI has been a political football for the past two years? Nopity noping nope. We’ll be right back to square one, with Democrats saying we need a *full* investigation, without time limits–and they’ll have a really good point. And Republicans saying we have to move forward. And everybody just mad as hell about it.
Plus, my inner criminal defense lawyer’s head is exploding at all this ignorant insouciance of “if you’re innocent you’d be eager for the FBI to investigate and clear your name!!” NO NO NO NO. If you’re innocent, the FBI is not going to prove a negative, that nothing happened. There will always be a cloud of suspicion over you, and people get to malign you as “under investigation by the FBI” for the rest of your life. Plus, you’re taking the risk of crooked investigators planting or twisting something to be falsely incriminating. The left cared about that danger five minutes ago. Plus, lying to the FBI is a crime. What counts as lying? Making slightly inconsistent statements. Think you’re smart, savvy, honest, and innocent enough to avoid making inconsistent statements? When you’re subject to multiple, lengthy, high-pressure interviews by highly trained investigators who have carte blanche to lie to you? You’re not, and Martha Stewart wasn’t, and lots of others haven’t been. The FBI can get enough on you to charge you with a crime if they want to, no matter how innocent you are of the actual crime under investigation. They do it all the time–it’s how they force plea agreements when they don’t think they’ll get any better evidence but still have strong incentive to get you for something. To them, headlines saying “prominent suspect pleads guilty to misleading investigators in attempted rape case” is nearly as good as conviction for attempted rape.
TL;dr do not take federal criminal investigative powers lightly. It’s terrifying everyone is doing so to score points in the Kavanaugh debate. That’s not how you run a free society.
3.
Sigh. This is such a heinous mess. Everything in me wants to accept Dr. Ford’s testimony as true–I want to extend nothing but compassion to a fellow woman who is suffering. But I went to law school, which sucked out my soul, and forced me to notice things that don’t add up. Maybe they do add up under further investigation. But right now there are a lot of reasons to scratch my head re her accounts of the assault. Not just that sexual assault survivor’s memories aren’t perfect, but that her inconsistencies seem strategic:
https://mobile.twitter.com/ProfMJCleveland/status/1046408449918218240
Posted from Park City, Utah
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