Category Archives: Kavanaugh

A Politicized FBI

Good analysis to help understand just how the FBI is designed to fit into “judicial reviews”.
WSJ 10/2/2018
By David B. Rivkin and Kristi Remington

The bipartisan bonhomie occasioned by the reopening of Judge Brett Kavanaugh’s background investigation dissipated quickly. By the weekend, Senate Democrats—who had demanded the investigation by the Federal Bureau of Investigation—were challenging its credibility, objecting to its scope and focus, and lamenting that the White House had any involvement in shaping the process.

The reopened investigation, according to Sen. Lindsey Graham— reflecting the White House’s view— potentially entailed interviewing Deborah Ramirez, who claims that Judge Kavanaugh committed lewd conduct while a freshmen at Yale, and the three purported witnesses named by first accuser Christine Blasey Ford—Mark Judge, P.J. Smyth and Leland Keyser—all of whom have attested they have no memory that would corroborate her accusation. Julie Swetnick’s sordid and implausible claims were to be left out, and if any new allegations against Judge Kavanaugh were to emerge, these also wouldn’t be investigated.

President Trump told reporters Monday: “The FBI should interview anybody that they want within reason, but you have to say within reason.” That qualification is crucial. It is clear that Judge Kavanaugh’s opponents are clamoring for an open-ended fishing expedition that, probably by design, would go on much longer than a week. They are insisting that the FBI investigate Judge Kavanaugh’s drinking while in high school and college and interview anyone who might know about it. Two such people have already come forward, and there are no disincentives for new claimants, possibly driven by partisan or personal animus, to emerge.

Sen. Patrick Leahy (D., Vt.) tried to justify his demand to broaden the FBI investigation by claiming that heavy drinking was “directly relevant” to the sexual-assault allegations. If this approach were adopted, the FBI would have to interview a very large pool of witnesses about Judge Kavanaugh’s alcohol intake, and possibly many other personal traits, over many years. Never mind that alcohol use is a standard FBI question, certainly asked in the course of Judge Kavanaugh’s previous six background investigations.

Kavanaugh foes also want the FBI to interview people who might challenge the credibility of pro-Kavanaugh witnesses. Mr. Judge is a prominent target here. His former girlfriend Elizabeth Rasor has stated publicly that he has disclosed to her facts relating to his past sexual activities that have nothing to do with Judge Kavanaugh, but cast Mr. Judge in a negative light. This approach could also open up a never-ending investigation, in which the FBI inquires into the credibility of all witnesses, whether pro- or anti-Kavanaugh, including witnesses interviewed to test other witnesses’ credibility.

The demands get even more absurd. “For its investigation to be comprehensive, the FBI must also get to the bottom of what ‘boofing’ means,” wrote Brian Fallon, who worked as press secretary for Hillary Clinton’s 2016 campaign, in Politico on Monday. That’s a reference to a joke in Mr. Kavanaugh’s highschool yearbook entry. As Mr. Fallon notes, “Kavanaugh said it referred to ‘flatulence.’ ” The entire debate is complicated by confusion about what the FBI does in a background investigation. Even former Director James Comey is mixed up. He penned a vastly misleading New York Times op-ed Sunday, in which he seemed to conflate background checks with criminal probes. “It is one thing to have your lawyer submit a statement on your behalf,” Mr. Comey wrote. “It is a very different thing to sit across from two F.B.I. special agents and answer their relentless questions.”

The FBI is primarily a law-enforcement agency. Its criminal investigations are often wide-ranging, can be potentially expanded into new areas, and have no preset time limits. Although the president has authority under the Constitution to direct the exercise of all federal law-enforcement activities, in practice the FBI enjoys great autonomy when conducting criminal investigations. Agents seek both to uncover the facts and to assess the credibility of everybody they interview. Their questioning is often aggressive and repetitive. Interviewees are warned they will face criminal penalties if they lie to the FBI.

FBI background investigations are a fundamentally different affair. They are not based on any explicit statutory authorization but are founded on regulations authorizing investigations of persons who seek federal government employment. The bureau’s authority to conduct investigations of nominees dates to at least President Eisenhower’s Executive Order 10450 of 1953, though some scholars credit the beginning of the process to President Hoover and his request of Attorney General William Mitchell to investigate the qualification of applicants for judicial positions.

FBI background investigations are carried out by a special team within the bureau called Special Inquiry and General Background Investigations Unit. SIGBIU functions as a gatherer of facts. It doesn’t cajole or challenge witnesses and routinely offers them anonymity. It never proffers any credibility assessments or speculates about the motives of witnesses.

SIGBIU operates on tight deadlines and usually moves faster with Supreme Court nominations. The process begins and is completed well before the nominee’s Senate Judiciary Committee hearing takes place. Occasionally, SIGBIU is directed to conduct further interviews. Throughout the whole process, it operates under instructions from both the Justice Department and the White House Counsel’s Office.

Significantly, there is a firewall between SIGBIU and FBI’s criminal-investigative divisions. SIGBIU’s goal is to have witnesses be open and forthcoming. Agents routinely assure witnesses that nothing that they say during the interview will be referred for criminal investigation. Even more fundamental, the FBI’s velvet-glove approach to background investigations reflects its recognition that people they interview are not suspected of any crimes and cannot be coerced into cooperating or threatened with a grand jury subpoena.

Running a background investigation as if it were a criminal one would destroy the FBI’s ability to conduct the former. It would cause many Americans to refuse to cooperate. It would cause the bureau to exceed its constitutionally proper remit. And having the FBI proffer credibility determinations in the context of a judicial appointment would politicize the bureau—and, as then-Sen. Joe Biden correctly asserted during Justice Clarence Thomas’s 1991 confirmation hearings, it would usurp a function that properly belongs to the president and the Senate.

The demands by anti-Kavanaugh Democrats are blatantly partisan and unfair. What they seek has never been done with any judicial nominee in American history. They also run afoul of important legal and practical realities of FBI-conducted background investigations. If countenanced, they would politicize the FBI and destroy the judicial confirmation process.

Mr. Rivkin practices appellate and constitutional law in Washington. He served in the Justice Department and the White House Counsel’s Office during the Reagan and George H.W. Bush administrations. Ms. Remington served in the Justice Department during George W. Bush administration. She was responsible for overseeing the judicial nomination and confirmation process, including for Chief Justice John Roberts and Justice Samuel Alito.


Destroy the Judge

Very good piece.
WSJ 10/2/2018 William McGurn

As malignant as were the campaigns against Supreme Court nominees Robert Bork and Clarence Thomas, even they didn’t face accusations as vile and unrelenting as the unsubstantiated charges against Brett Kavanaugh. Adding to the injustice is that the frenzy surrounding his nomination isn’t really about him.

It’s about Roe v. Wade. The 1973 Supreme Court decision upended the laws of all 50 states on behalf of a constitutional right to abortion the Constitution somehow neglects to mention. Since then, the advocates of a living Constitution posit that while our Founding document is infinitely malleable, this one ruling is fixed and sacred.

Judge Kavanaugh’s great misfortune is to have been nominated at a moment when the party in opposition frets this fixed and sacred ruling could be overturned.

Never mind that Chief Justice John Roberts is unlikely to acquiesce to a move that would bring down the furies on his court. Or that it’s not clear Judge Kavanaugh would be any different, having assured senators that he regards Roe as “settled” and “an important precedent” whose central holding had been reaffirmed in Planned Parenthood v. Casey (1992). Or that over- turning Roe still wouldn’t make abortion illegal.

The problem is that even Roe’s most ardent champions know it is devoid of legal and constitutional substance. So they know it is vulnerable to a closer look by any serious jurist, including those who are themselves pro-choice. No wonder Sen. Dianne Feinstein tweeted, “It’s not enough for Brett Kavanaugh to say that Roe v. Wade is ‘settled law.’ ” Let me translate: Nothing personal, judge. But if you won’t declare that a decision laid down by seven unelected men in robes is untouchable, we have no choice but to do whatever it takes to keep you off the high court. This is what Democrats do when they see a possible fifth vote against Roe in play.

It’s what they did in 1987 when they transformed “Bork” into a verb. It’s what they are now doing to Judge Kavanaugh. They do it with the eager help of a press that has abandoned even the pretense of objectivity, and institutions such as the American Bar Association and American Civil Liberties Union, which have betrayed their own principles in the effort to bring this man down.

In this cause, there is no room for fairness and decency. When CNN’s Jake Tapper asked Sen. Mazie Hirono if Judge Kavanaugh deserved “the same presumption of innocence as anyone else” about the sexual-assault accusations against him, the Hawaii Democrat gave the game away. “I put his denial in the context of everything that I know about him in terms of how he approaches his cases,” she replied, noting he “very much is against women’s reproductive choice.”

Mr. Tapper understood instantly. “It sounds to me like you’re saying, because you don’t trust him on policy and because you don’t believe him when he says, for instance, that he does not have an opinion on Roe v. Wade, you don’t believe him about this allegation about what happened at this party in 1982” he asked.


Once again Antonin Scalia saw it all coming before anyone else. He laid it out in a biting dissent in Planned Parenthood v. Casey. Amid the circus the Kavanaugh nomination has become, it bears rereading.

Many assume the Roman Catholic jurist’s dissent was rooted in his personal opposition to abortion. But Scalia never spoke of his own views. And his Casey dissent is something to which even the most robustly pro-choice Americans could sign their names.

Far from settling the issue, Scalia wrote, Roe remains brittle because it lacks constitutional warrant. It represents the triumph of an “Imperial Judiciary” which “intensifies” the polarization over abortion by keeping the issue out of the democratic process, thus depriving the losers the compensating “satisfaction of a fair hearing and an honest fight.”

He went on. If the Supreme Court is simply to be a vehicle for choosing among competing values, in a democracy it should be the values of the voters that prevail. Thus, “confirmation hearings for new Justices should deteriorate into question and answer sessions in which Senators go through a list of their constituents’ most favored and most disfavored alleged constitutional rights.” Today the nation marches to the beat of the dysfunctions Scalia laid out so well in his Casey dissent, to the point where we have just allowed the nominations process itself to be blown up. When the day comes that the Court reconsiders Roe, the justices will no doubt take seriously the arguments from stare decisis for leaving it be. Let us hope they consider as well the poisons Roe continues to inject into the American body politic, not least of which is the incentive to reward the character assassination of Republican nominees.

Brett Kavanaugh is a decent man with a lovely wife and two sweet daughters. He is also what the Democrats fear most on the courts: an honest judge. Which is why he and his innocent family are being destroyed before our very eyes.


The New McCarthyism?

Much about which I disagree with Mr. Dershowitz, but I give him much credit for this piece.
WSJ 10/1/2018 Alan Dershowitz

Until Judge Brett Kavanaugh was accused of horrible crimes—sexual assault, lewd conduct and even gang rape—his confirmation hearings could fairly, if not entirely accurately, be characterized as a “job interview.” The burden was on him to demonstrate his suitability to serve on the Supreme Court. He apparently met that burden in the eyes of a majority, a partisan one to be sure, and seemed on the way to getting the job.

But now everything has changed. So should the burden of persuasion. The behavior of which Judge Kavanaugh has been accused is so serious and devastating that it requires a high level of proof before forming the basis for his rejection. There is an enormous and dispositive difference between a candidate’s rejection on ideological grounds, as was the case with Robert Bork, and rejection on the ground that he has committed crimes warranting lifetime imprisonment rather than a lifetime appointment.

Being on the Supreme Court is a privilege, not a right. But being disqualified based on a false accusation of a crime would be a violation of the fundamental right to fairness. Some will argue that the issue of Judge Kavanaugh’s ideological and professional qualifications should be merged with the sexual allegations and that doubts should be resolved against a lifetime appointment.

In some cases that would be a plausible argument. But it is too late for that kind of nuanced approach now, because these accusations have received world-wide attention. Judge Kavanaugh is on trial for his life. At stake are his career, his family, his legacy and a reputation earned over many decades as a lawyer and judge.

If he is now denied the appointment, it will be because he has been depicted as a sexual predator who deserves contempt, derision and possible imprisonment. He may no longer be able to teach law, coach sports or expect to be treated respectfully. He could be forced to resign his current judicial position, because having a “convicted” rapist on the bench is unseemly. For these reasons, he now has the right—perhaps not a legal right, but a right based on fundamental fairness—to have the charges against him put to the test of clear and convincing evidence or some standard close to that.

The court of public opinion is different from a court of law, but it too is an important court. Wouldn’t anyone rather be convicted in a court of law of drunken driving—also a serious crime—than convicted in the court of public opinion of being a serial sex predator? Many would even rather go to prison for a year on drunken driving charges than be labeled a sexual predator for life. In a nation dedicated to fairness and due process, explicit constitutional rights often serve as a metaphor and guide in the kind of basic fairness we demand even in nonlegal proceedings. That model should operate here as well.

Had Judge Kavanaugh been rejected on ideological or professional grounds before these sordid accusations were leveled, he could go back to his life, as Robert Bork did. But if the Senate fails to confirm him now, his life will never be the same.

Some would argue that if Judge Kavanaugh is now confirmed in the face of these serious accusations, it will have an equally damaging effect on the life, reputation and credibility of his accusers. That is false. Even if he is confirmed, those accusers will be treated as heroes by the many people who believe them. It will not have close to the impact on them that a failure to be confirmed will have on Judge Kavanaugh. The best evidence of that is Anita Hill, who has gone on to a distinguished career as an academic, writer, commentator and feminist. The stakes are simply not comparable.

I don’t know whether Judge Kavanaugh is guilty, innocent or somewhere in between. I don’t know whether he told the truth, the whole truth and nothing but the truth. Judge Kavanaugh wouldn’t have been my candidate of choice for the Supreme Court. I am a liberal Democrat who believes Republicans improperly denied Judge Merrick Garland a seat on the high court.

But this is no longer about who would make the best Supreme Court justice. It is about the most fundamental issues of fairness this country has faced since the McCarthy era, when innocent people were accused of trying to overthrow the government and had their lives ruined based on false accusations, while being denied all semblance of due process or fairness. The American Civil Liberties Union stood strong against McCarthyism by demanding due process and hard evidence. But the ACLU now argues that “unresolved questions regarding credible allegations of sexual assault” be resolved against the accused nominee.

We have come a long way since McCarthyism, but we now live in an age that risks a new form of sexual McCarthyism. We must not go to that even darker place. The best way of assuring that we don’t is to accord every person regardless of his status, the kind of fundamental fairness we would expect for ourselves if we were accused.

Mr. Dershowitz is a professor emeritus at Harvard Law School and author of “The Case Against Impeaching Trump.”


Kavanaugh Attack is Un-American

WSJ 9/27/2018     By Libby Locke

A reputation is a fragile thing. Last week was a testament to that simple truth. Within hours of being accused of an unsubstantiated and uncorroborated three-decades old assault, Judge Brett Kavanaugh’s reputation as a highly respected jurist with an unblemished personal record was permanently damaged. Many rushed to declare Judge Kavanaugh guilty merely because he had been accused. Democrats all too happily called for him to withdraw his Supreme Court nomination, while his accuser’s lawyer basked in the left’s glory for slowing a Supreme Court nomination that seemed a sure thing.

As the #MeToo tidal wave crests, it is crucial to remember what happens when we blindly assume the truth of allegations rather than require evidence and adhere to the notion that people are innocent until proven guilty. I have seen firsthand what happens when people mindlessly follow preconceived narratives, disregard evidence, and indiscriminately believe accusers. I represented Nicole Eramo, a dean at the University of Virginia, who was victimized by one of the most notorious false rape accusations in recent history.

Rolling Stone magazine claimed in 2014 that Ms. Eramo had tried to cover up a horrific gang rape at a UVA fraternity. The campus exploded in protest, and Ms. Eramo—who had dedicated her career to helping survivors of sexual assault and had supported the purported victim—became a national villain, receiving public condemnation and death threats.

Although we were ultimately able to vindicate Ms. Eramo publicly, winning a $3 million jury verdict for defamation, we faced the tremendously difficult task of proving what had not happened: that the reported gang rape did not occur, and that Ms. Eramo did not dismiss the accuser’s allegations. That required months of litigation—not to mention the public backlash my law firm endured by daring to ask a purported victim of sexual assault questions about her allegations.

Judge Kavanaugh finds himself in a similar unenviable position: being expected to prove a negative. To vindicate himself in the eyes of those who assume his guilt, he must show that something else happened, for example that he was somewhere else when the incident—whose location is itself unspecified—allegedly occurred. To make matters worse, the purported assault took place before cellphones, text messages, emails— making it hard to find contemporaneous documents to demonstrate the falsity of the claim.

That’s precisely why Democrats have latched onto these allegations— because they are unprovable. It is her word against his. And how dare a white man, from a privileged background, confront his accuser—either himself or through his lawyer. Even if that lawyer is a woman. The left tells us that to do so would be “insensitive” and would “revictimize” her. But with that approach, due process is thrown out the window, all law is politics, and mob rule becomes the standard. It is un-American, and all Americans should be fearful.

Senate Republicans should not have invited Christine Blasey Ford to testify without first requiring her to answer written questions under oath and produce any documents supporting her claims. The polygraph results were finally released Wednesday, but where are those therapist notes? What questions was Ms. Ford asked, and how did she answer them, in each of those settings? What do others— witnesses either to the alleged assault or to Ms. Ford’s recounting of it—have to say about it under oath?

An adversarial process—with testimony by relevant witnesses supported by contemporaneous documents— is the best way to make a determination about Ms. Ford’s and Judge Kavanaugh’s credibility. A he-said she-said back-and-forth without documents or witnesses will produce nothing except political theater.

Senate Republicans and Democrats— along with the American public— should remember that in civil and criminal settings, the prosecution bears the burden of proof. The Senate Judiciary Committee in its advice-and consent role for Supreme Court nominations should not disregard this bedrock principle of American jurisprudence— it should firmly embrace it. Unless Ms. Ford can satisfy her burden of proof by calling witnesses with contemporaneous knowledge of her claims or producing relevant documents supporting her allegations, Judge Kavanaugh should be presumed innocent and his nomination should be confirmed.

At this point, all we know is that every purported witness denies any knowledge of the party where the assault is supposed to have happened— including a female friend of Ms. Ford’s, who says she doesn’t even know Judge Kavanaugh. Ms. Ford, through her Democratic lawyer, Debra Katz, has only referenced—or produced portions of—very self-serving documents. The American people should be permitted to hear from these witnesses and to review these documents. And they are entitled to answers to other relevant questions to determine whether this is—as many Republicans suspect—merely a political hatchet job.

When did Ms. Ford retain Ms. Katz? Who referred Ms. Ford to Ms. Katz? If this is not a political attack, why did she choose Ms. Katz as her lawyer? What communications did she, or Ms. Katz, have with Senate Democrats before publicly making these allegations? Why did Ms. Ford report her allegation to a Democratic politician, rather than to local law enforcement or to the FBI?

The controversy erupting around the Kavanaugh nomination underlines the power of the #MeToo movement, which is predicated on the idea that the dynamics between the sexes rob women of their power. But anyone still holding to that Victorian notion should have been disabused of it last week.

The circus this process has become demonstrates not only the power of #MeToo but also its potential as a weapon—and how an audience eager for victim narratives and sinister power dynamics can be galvanized without proof to shatter a man’s reputation built over a lifetime of hard work. When preconceived narratives replace the demand for facts and evidence, accusations become self-proving. Don’t be surprised when people with ulterior motives invent false accusations that destroy the innocent.

Ms. Locke is a partner in the law firm Clare Locke LLP, based in Alexandria, Va.