Huston: Analysis of the Kavanaugh Charges

September 19, 2018

THE SAN FRANCISCO CHRONICLE NAILS IT — You don’t have to be Sherlock Holmes to have figured out that the last-minute ambush of Judge Brett Kavanaugh was organized by the Washington Post and Sen. Diane Feinstein in coordination with the “victim” and her publicist lawyer.

Sen. Mazie Hirono of Hawaii insists that men should just shut up about the credibility of accuser Dr. Christine Blasey Ford, presumably because they are: a) sexist; b) incompetent to fairly weigh evidence; and c) too dumb to understand that women are always to be believed unless they accuse Bill Clinton of rape.

The Democrats want the FBI to investigate the allegation against Judge Kavanaugh. There are, however, two problems with their entirely non-partisan demand that an official investigation precede the public lynching. First, assuming all the alleged facts are true, they do not establish the commission of a federal crime; i.e., there is no jurisdictional predicate for an FBI investigation. Second, the scope of an FBI background investigation of a presidential nominee is determined by the White House. It is an information-gathering process for the exclusive benefit of the President, not a criminal investigation or a fishing expedition at the call of the Senate minority leadership.

In the Anglo-American legal system, the burden of proof is on the accuser. It is up to Ford to establish her case to the reasonable satisfaction of the jury (in this case, a majority of the senators voting on the nomination). It is not the obligation of the accused to disprove the occurrence of an event that he insists under oath never occurred.

I don’t know what precedent the Democrats believe they are setting by their nuking of the Supreme Court nomination process, but it ought to be obvious that the days in which a Scalia or a Ginsberg could be confirmed by a bipartisan majority are gone.

CROSS EXAMINATION of the accuser of Judge Kavanaugh following any testimony before the Senate Judiciary Committee next week would likely be determinative of the credibility of the accusations for Republicans. Ted Cruz is generally a good cross-examiner, but with a tight reelection race facing him, he would head to the tall grass when his turn came. Lindsay Graham might arise to the occasion or Chairman Grassley may be at top of his game, but the Republican A Team is short of big leaguers. Of course, no Democrat would lay a finger on the witness.

It was Sen. Arlen Specter of Pennsylvania, the most liberal Republican on the Judiciary Committee who, through his artful cross-examination of Anita Hill, carried Clarence Thomas across the finish Iine. A former Philadelphia District Attorney, his performance that day was of the highest order of lawyering. I don’t see his professional equal on the committee today.

THE FOLLOWING SUMMATION of the state of the evidence in the case of the alleged “assault” by Judge Kavanaugh when he was in high school was penned by a former county prosecuting attorney. It is a lawyer-like summation of the facts (or lack of facts) in evidence. It is exceptionally well done, and I commend it to your attention:

“Imagine, if you will, that a High School acquaintance suddenly accused you of a crime 35 years ago (let us say of stealing $200 from him by threatening to beat you up). Further, your accuser admits that no one else knew anything about this crime for 29 years and that he has no other evidence but his word that you committed the crime. You vehemently deny this accusation. Would anyone take the accusation seriously? Should they? Here is what we have with Dr. Ford’s accusation against Judge Kavanaugh:

  1. She waited at least 29 years to tell ANYONE, she says.
  2. She can’t say when and where the alleged sexual battery occurred, which makes it impossible for her story to be checked or for Judge Kavanaugh to demonstrate an alibi.
  3. She has no physical evidence of the alleged crime.
  4. She claims other people were there but she does not remember who they were.
  5. She claims she did not make any contemporaneous statement to anyone about the alleged crime.
  6. We have no way to determine her condition at the time of the alleged incident to determine her ability to make a credible report, that is, her ability to properly observe and remember.
  7. No one is claiming any admissions by the accused to any third party.
  8. Even if she is absolutely convinced of the truth of the allegation, memory research has demonstrated that human beings often honestly ‘remember’ things that did not happen, or did not happen as remembered.

“I do not claim to be able to tell when someone is lying. The most ridiculous claims are sometimes true. I can only say that if this is very, very poor evidence to lead anyone to believe Judge Kavanaugh did what Dr. Ford alleges.”

— Tom Charles Huston


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