Diatribes of Jay

This is a blog of essays on public policy. It shuns ideology and applies facts, logic and math to economic, social and political problems. It has a subject-matter index, a list of recent posts, and permalinks at the ends of posts. Comments are moderated and may take time to appear. Note: Profile updated 4/7/12

05 October 2018

The Sham “Investigation”

[Fox sixteen reasons to vote this time for Democrats only, click here. For a note on the likely electoral consequences of the GOP ramming Kavanaugh through to the Supreme Court, click here. For a note on why the issue has become personal for many, click here. For a short note on how important Professor Ford’s charges are, click here. For comment on President Obama’s decision to join the political fray, click here. For a possible path to Trump’s impeachment and removal, click here. For comment on Trump’s deal with Mexico, click here. For a brief homage to John McCain, followed by reasons to support Stacey Abrams, click here. For a brief note on vote suppression in Georgia as a reason to support Stacey Abrams, click here. For other good candidates and causes and how to contribute easily, click here. For recent posts in reverse chronological order, click here.]

Rarely has so much hype produced so little.

What was the purpose of having the FBI investigate Professor Blasey Ford’s claims of sexual assault against Judge Kavanaugh? Wasn’t it to reconcile or clarify a complete standoff in testimony? Professor Ford had declared herself 100% certain that Kavanagh was the one who had sexually assaulted her. He had declared himself 100% certain that he had never done it.

For anyone who has ever been to law school, let alone graduated or actually practiced law, handling this situation is not rocket science. It’s everyday legal routine. You try to resolve the standoff with more witnesses, more testimony of the existing witnesses (including vigorous cross-examination), and physical evidence, such as Judge Kavanaugh’s comments in his yearbooks.

Furthermore, you take your time at it. Regardless of which side you’re on, once depositions convince you that a testimonial tug-of-war is coming at trial, you devote whatever time and effort it takes. You work day and night to squeeze every bit of possible evidence from every living human being and every inanimate thing in the physical universe. If you don’t have enough time, you ask the judge and opposing counsel for a “continuance,” i.e., a delay of trial. This is what every trial lawyer does routinely.

In this particular case, the proper scope of investigation is even broader. This was not a criminal trial of Judge Kavanaugh, the more so because any actual criminal charge would have been stale by decades. It was a job interview: a test of Judge Kavanaugh’s character and fitness to serve on our Supreme Court. So in this case it was not only proper, but mandatory, to go beyond the first sexual assault claimed by Professor Ford and investigate any and all other similar claims, including the penis-in-face pushing alleged by Deborah Ramirez and the complicity in gang rape alleged by Julie Swetnick. (Can you believe we are even thinking about these sordid crimes in connection with a nominee to our Supreme Court?)

Finally, although this was most definitely not a criminal trial, there are two features of criminal trials that ought to apply. Under the Sixth Amendment to our Constitution, everyone accused of a crime has “the right to a speedy and public trial” and “to be confronted with the witnesses against him[.]”

Why are these things important? Every criminal trial is a showcase and a test of our system of justice. In a transparent democracy, everything ought to be open and aboveboard. Every claim, charge and testimony against a person should be publicly examined and publicly adjudged. If all this is required for a petty criminal, how much more ought it be required for an aspirant to a lifetime appointment on our Supreme Court?

Did the FBI’s so-called “investigation” meet any of these criteria for a thorough investigation of conflicting testimony? Not a single one.

The overall time allotted was unreasonably short: a mere six days from Jeff Flake’s twisting senators’ arms in order to allow any investigation to the so-called “report” appearing, in secret, in the Senate’s chambers. No lawyer worth his or her salt would allot only six days to investigating a felony charge, let alone a felony with a Supreme Court seat at stake.

Not all important witnesses were interviewed. Not even the most important were. The FBI interviewed neither Professor Ford nor Judge Kavanaugh during its investigation of Ford’s charges. In fact, Judge Kavanaugh has never been personally examined by a professional law-enforcement officer, or by a practicing attorney as adversary, for those or any related charges. In particular, no such officer or practicing lawyer has ever interviewed Judge Kavanaugh under oath regarding the most important piece of physical evidence—his cryptic and suspicious comments in his yearbooks.

This so-called “investigation” treated the additional claims of Ramirez and Swetnick improperly, as mere possible corroboration of Ford’s charges. But they were and are much more. Each additional charge, if credited, was and is a completely independent reason to keep Judge Kavanaugh off our Supreme Court. The Senate’s and FBI’s treating these charges as at most corroborative of Ford’s charges, rather than as independent evidence of unfitness—and the FBI’s failure to interview additional witnesses accordingly—was a fundamental conceptual error of the entire “investigation.”

Finally, the secrecy with which the GOP-dominated Senate Judiciary Committee covered up everything is utterly incompatible with the openness and transparency that any democracy demands in resolving such an important controversy. Not only could the public discern nothing about the investigation; even Senators could not talk in detail about the FBI’s report, apparently under possible discipline from the Senate.

As a result, the two principal parties (Ford and Kavanagh) cannot defend their honesty and reputations properly, and the public has no way of knowing whose word the “investigation” supported or refuted. This is the equivalent—in the case of a vital job interview and test of character—of refusing to allow “a criminal defendant to to be confronted with the witnesses against him[.]”

So not only was this “investigation” a sham. As an attempt to get to the bottom of a self-evidently vital issue, it was a travesty of democratic norms and procedure.

The White House and the Senate leadership, apparently, have tried mightily to obscure who was responsible for this travesty. They‘ve done so by pointing fingers at each other and passing the hot potato back and forth. But it doesn’t really matter which of them is to blame.

What matters is that no enlightened citizen in his or her right mind, let alone a trained lawyer, would ever take this sham as putting anything to rest, let alone the question of Judge Kavanaugh’s suitability to sit on the Supreme Court. Among many other things, this “investigation” failed even to address whether a man who rants and raves about conspiracy theories in response to serious charges and claims against his character and fitness deserves such an exalted post.

The sham “investigation” proves only one thing: Republicans have the votes or think they do. They have the votes on the Senate Judiciary Committee to call this nonsense an “investigation” and to keep its substance secret so that no one can fully appreciate its utter inadequacy.

This is not democracy, transparency or proper legal procedure. It’s a political version of “might makes right.” They think they’ve got the votes.

I guess we’ll just have to wait and see who has the votes in November and in 2020.

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