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Here\u2019s 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:<\/p>\n
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\u201cRachel Mitchell Memo Lists Weaknesses in Ford Claim:\u00a0READ\u201d<\/a><\/p>\n \u00a0<\/p>\n ***<\/strong><\/span><\/p>\n \u00a0<\/p>\n Regarding that third (and already, by far, least credible) Kavanaugh accuser:<\/p>\n \u00a0<\/p>\n \u201cKavanaugh accuser Julie Swetnick faced own misconduct allegations at past job with tech firm: reports\u201d<\/a><\/p>\n \u00a0<\/p>\n ***<\/strong><\/span><\/p>\n \u00a0<\/p>\n Cassandra Showell Hedelius, a frequent and highly valued volunteer for the Interpreter Foundation<\/a> 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. \u00a0I appreciate her perspective and, with her permission, I share three of her comments here:<\/p>\n \u00a0<\/p>\n 1.<\/strong><\/span><\/p>\n \u00a0<\/p>\n A few points.<\/span><\/p>\n (1) I\u2019m agnostic on where the truth lies between Ford vs. Kavanaugh. What follows assumes a maximally charitable interpretation of each.<\/span><\/p>\n (2) Ford was treated horrifically by Feinstein. It\u2019s horrific that this wasn\u2019t 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.<\/span><\/p>\n (3) \u201cIt\u2019s just a job interview.\u201d 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\u2019s not be insultingly flip about what\u2019s happening, no matter how disdainfully you view privileged white guys.<\/span><\/p>\n (4) \u201cThis is about Kavanaugh specifically, not conservative nominees generally, because Gorsuch.\u201d Nope. There\u2019s 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\u2019 watch because of the inconvenient timing of Scalia\u2019s death.<\/span><\/p>\n (5) \u201cRepublicans could have just pulled Kavanaugh and submitted a better nominee.\u201d Several issues here. First, moral hazard. If you reward bad behavior like Feinstein\u2019s delay, you invite more of it. Second, you\u2019d be inviting more of it strenuously and immediately, because we\u2019re getting perilously close to midterms. Democrats would have huge incentive to pull another Feinsteinian move and run out the clock. They\u2019ve 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\u2019s recent confirmation hearing. \u201cThen Republicans should submit a nominee who\u2019s more acceptable to Democrats.\u201d Heh. This is about conservative nominees generally, not Kavanaugh specifically (see #4).<\/span><\/p>\n (6) \u201cKavanaugh\u2019s treatment is only fair after what was done to Garland.\u201d 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\u2019t mean your righteous anger is more valid than Miguel Estrada\u2019s. The lesson of Bork was that when the other party holds the Senate and doesn\u2019t like the cut of the nominee\u2019s jib, they won\u2019t confirm him just to be cordial. Democrats made that bed, and Garland had to lie in it.<\/span><\/p>\n (7) \u201cJust let the FBI investigate. If you were innocent, wouldn\u2019t you want the FBI to clear your name?\u201d Pardon me while I scoff my face off. Sorry, I\u2019m back. After all the very necessary conversation we\u2019ve 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\u2019s 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\u2019s horrific. That\u2019s 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 \u201chey, just let us clear this up with a little federal criminal investigation\u201d is an abhorrent precedent. One that could bite likely Dem nominees just as hard, or much harder, than Republican ones.<\/span><\/p>\n (7a) Plus, the FBI is, like all federal agencies, sclerotic and slow. We\u2019re 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\u2019re scurvy rapists? No, because *you never never never never never talk to the FBI without a lawyer ever never oh my gosh I\u2019m going to blow an artery NEVER DO YOU HEAR ME?)<\/span><\/p>\n (7b) So what about someone like Ford\u2013whom, you recall, I\u2019m not at all impugning? What if she just wasn\u2019t 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\u2019s Feinstein\u2019s fault that Ford\u2019s was not. I\u2019m sympathetic to the argument that it\u2019s 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\u2019s no longer practicable to consider accusations against a nominee. Feinstein, upon receiving Ford\u2019s intelligence, should have said \u201cwe need to submit this to the judiciary committee\u2019s confidential investigative process right away, or else we\u2019ll miss the window for it to be fully considered as part of the Senate\u2019s advisory role.\u201d Instead, Feinstein said (or didn\u2019t) \u201cI\u2019ma 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.\u201d I rather doubt Feinstein explained her reasoning to Ford, and I rather feel Feinstein is a terrible human being for doing that to Ford.<\/span><\/p>\n I\u2019m going to tyrannically moderate comments on this because I\u2019m not out on everyone else\u2019s page and stupid \u201cHandmaiden\u201d memes arguing and don\u2019t feel like arguing a ton here. Be thoughtful and sane.<\/span><\/p>\n \u00a0<\/p>\n 2.<\/strong><\/span><\/p>\n \u00a0<\/p>\n I\u2019m really pessimistic about this upcoming FBI investigation into Kavanaugh. It\u2019s more of an extended background check than a criminal investigation. That means they won\u2019t have the ability to subpoena or compel testimony. Which means the interviewees are going to lawyer up and say \u201chaha nope, I have nothing to say to you.\u201d Because even though it\u2019s not a formal criminal investigation, it\u2019s still the country\u2019s most powerful investigative agency specifically looking for evidence of a crime. If you\u2019re a dude who hosted a party recorded on Kavanaugh\u2019s calendar, you\u2019d be an idiot to talk about it. Because you\u2019re giving criminal investigators material to work with to decide you were the accessory to a crime. So it\u2019s 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\u2019t even be enough time to get through the preliminaries of \u201ctalk to my lawyer, I have nothing to say,\u201d let alone scheduling and carrying out interviews.<\/span><\/p>\n 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\u2013think that\u2019ll 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\u2019ll be right back to square one, with Democrats saying we need a *full* investigation, without time limits\u2013and they\u2019ll have a really good point. And Republicans saying we have to move forward. And everybody just mad as hell about it.<\/span><\/p>\n Plus, my inner criminal defense lawyer\u2019s head is exploding at all this ignorant insouciance of \u201cif you\u2019re innocent you\u2019d be eager for the FBI to investigate and clear your name!!\u201d NO NO NO NO. If you\u2019re 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 \u201cunder investigation by the FBI\u201d for the rest of your life. Plus, you\u2019re 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\u2019re smart, savvy, honest, and innocent enough to avoid making inconsistent statements? When you\u2019re subject to multiple, lengthy, high-pressure interviews by highly trained investigators who have carte blanche to lie to you? You\u2019re not, and Martha Stewart wasn\u2019t, and lots of others haven\u2019t 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\u2013it\u2019s how they force plea agreements when they don\u2019t think they\u2019ll get any better evidence but still have strong incentive to get you for something. To them, headlines saying \u201cprominent suspect pleads guilty to misleading investigators in attempted rape case\u201d is nearly as good as conviction for attempted rape.<\/span><\/p>\n TL;dr do not take federal criminal investigative powers lightly. It\u2019s terrifying everyone is doing so to score points in the Kavanaugh debate. That\u2019s not how you run a free society.<\/span><\/p>\n \u00a0<\/p>\n 3.<\/strong><\/span><\/p>\n \u00a0<\/p>\n Sigh. This is such a heinous mess. Everything in me wants to accept Dr. Ford\u2019s testimony as true\u2013I 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\u2019t 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\u2019s memories aren\u2019t perfect, but that her inconsistencies seem strategic:<\/span><\/p>\n \u00a0<\/p>\n