Preliminary Note: See my September 28 article “Brett Kavanaugh: A Black Mark on the Supreme Court?” and my blog post of today, “Trump’s Sham FBI ‘Investigation’ of Kavanaugh.”
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Now that Congress and President Trump have allowed a one-week delay in the Kavanaugh confirmation vote to permit further investigation, the FBI is proceeding to interview witnesses. One of them will be Mark Judge, Kavanaugh’s best friend in high school.
Regardless of what Judge tells the FBI, Congress and Trump owe it to the American people to summon Judge to testify openly and publicly before the Senate judiciary committee, just like Christine Blasey Ford and Brett Kavanaugh. If he sticks by his unsworn statement that he has no recollection of the matter, so be it. But he should be required to state it openly and publicly and be rigorously cross-examined, just as Ford and Kavanaugh were.
The stakes — a lifetime appointment to the highest court of the land — are just too high for the American people to have to settle for a written report of an FBI interview of man who has been accused of participating as a partner in the sexual assault of Christine Blasey Ford, which Kavanaugh denies having committed.
One of the things many people have learned in this controversy is the vital importance of having witnesses present oral testimony in an open and public proceeding rather than simply rely on the presentation of written statements.
Prior to Ford’s testimony, some conservatives were alleging that she was nothing more than a political hack or, even worse, a “skank.” Some conservatives were referring to her as another Stormy Daniels, the pornography actress who alleges that she had an affair with President Trump. Still others were saying that Ford was part of a vast left-wing political conspiracy whose objective was to prevent a anti-Roe vs. Wade conservative from being appointed to the Supreme Court.
Once Christine Blasey Ford finished testifying, those voices immediately went silent. That is the power of oral testimony. Her testimony was so compelling, so genuine, no honest, so forthright, and so direct that not even President Trump, who has never shown any reluctance to accuse sexual-assault victims of lying — indeed, not even his nominee Brett Kavanaugh who Ford was directly accusing of having sexually assaulted her — dared to express one iota of doubt about the sincerity of Ford’s testimony about being assaulted. At best, they were relegated to asserting that she had mistaken Kavanaugh for someone else, notwithstanding her unequivocal testimony that she was 100 percent certain that Kavanaugh was the person who assaulted her.
Even the expert prosecutor who Republicans imported from New Mexico, Rachel Mitchell, who specializes in sexual-assault cases and who was hired for the sole purpose of poking holes in Ford’s testimony, came up empty-handed and, ironically, even came across as dreadfully incompetent as a cross-examiner.
That is the power of oral testimony. That’s why criminal trials in the United States, unlike those in other countries, require the actual presence of witnesses, where jurors can carefully watch them, study their demeanor, and listen to their answers in determining whether they are telling the truth, especially while they are being subjected to rigorous cross-examination.
Imagine if Ford had never been called to testify and instead had simply submitted her written statement for consideration. Everything today would be different. There would still be conservatives calling her a political hack, a porn actress, and a political conspirator.
That’s why Congress needs to require Mark Judge needs to testify in public, just like Ford and Kavanaugh have. Both the members of Congress and the American people have the right to watch him testify and carefully study his demeanor, especially while having his story subjected to rigorous cross-examination.
Keep in mind that with those FBI interviews, there is no cross examination. It’s just simply an interview. The FBI investigators are just asking questions, not challenging what the interviewee is saying, as that special prosecutor from New Mexico did to Ford and as the Democratic members of the judiciary committee did to Kavanaugh.
It doesn’t matter that Judge has stated in an unsworn letter that he has no recollection of the party where the assault allegedly took place or the assault itself. It doesn’t matter that he sticks with that story when the FBI interviews him. What matters is the urgent need to have him testify openly and publicly about what he knows and be subjected to rigorous cross-examination. Since he is alleged to have been both a participant to the assault and, thus, an eyewitness to the assault, reliance on nothing more than a written interview is absolutely unsatisfactory, given the high stakes involved, to wit: a lifetime appointment to the U.S. Supreme Court.
One of the things that I have found fascinating about this controversy is Judge’s extreme reluctance to testify and Kavanaugh’s extreme reluctance to have him subpoenaed to testify. Why wouldn’t both of these men want this testimony? You would think that Judge would be eager to present evidence that might tend to exonerate his friend and that Kavanaugh would be eager to have his friend testify. Yet, oddly, both of them appear to be deeply reticent about providing such testimony, especially given Judge’s escape to a Maryland beach house during the congressional hearing, which had the appearance of hiding to avoid the possibility of being served with a subpoena.
At this point, the attitude among some non-lawyers, who I’ll refer to as “laymen,” is that since it appears that the controversy revolves simply around Ford’s accusation and Kavanaugh’s denial, that makes it tie or a wash, since there is no “corroborating evidence” to sustain Ford’s accusation. Such laymen conclude, therefore, that under the principle of the presumption of innocence, Kavanaugh should prevail and be confirmed as a Supreme Court justice.
Every lawyer in the land, on other hand, knows that as of last Thursday, things just aren’t that simple anymore. The minute that Brett Kavanaugh stood and raised his right hand and took the oath from Senator Grassley to tell the truth, the whole truth, and nothing but truth, the ground shifted big time insofar as the legal profession is concerned.
That’s because as soon as Kavanaugh began testifying, every lawyer in the land knew that he was now subjecting himself to the laws of perjury. This was no longer an informal, unsworn interview on Fox News. This was sworn testimony by a lawyer and a federal judge before a congressional committee, subject to federal perjury laws.
Why is that principle so important to lawyers?
From the very day in law school and for the next three years, law students are ingrained with the the moral duty they have to represent their clients to the best of their ability. It doesn’t matter how guilty their client is or how despicable the crime he has committed. Their duty is to do everything they can to represent their client to the best of their ability, even it means securing the acquittal of a person who has admittedly committed a heinous crime.
WITH ONE BIG EXCEPTION: No false testimony — no perjury. Every law student is imbued with that message for three continuous years. It is ingrained into the students’ minds that truth is essential to the judicial process.
For example, suppose someone had walked into my law office when I was practicing law and confessed to having murdered someone. I could take the case and do everything I could at trial to poke holes in the prosecution’s case in the attempt to get my client acquitted. But there was something I could not do: I could not put on perjured testimony to help get him acquitted.
What if my client insisted on testifying at trial and told me he was going to lie? I would ask the judge to be permitted to withdraw from the case. I would not be at liberty to tell the judge why. I would simply have to tell the judge that the reason was extremely important. The judge would most likely know what that meant and would permit me to withdraw.
Every good lawyer will do his utmost to ensure that his client isn’t lying. In fact, a good example involves Christine Blasey Ford. Some laymen have questioned why her lawyers had her take a lie-detector test. They said that that showed that her lawyers didn’t believe her. That’s ridiculous.
In her testimony, Ford said that she was interviewing lawyers once it became clear that she was going to be testifying before Congress. I will guarantee you that the lawyers she was interviewing were also interviewing her. They would have wanted to be certain that they were not undertaking the representation of a person who was lying. They undoubtedly subjected her to a rigorous cross-examination in an attempt to break down her story. And it is easy to imagine the lawyers saying to her, “Are you willing to take a lie-detector case?” to test her sincerity and genuineness. When she obviously said yes and then passed the test, the lawyers would have felt extremely comfortable representing her and, in fact, impassioned about representing someone that they could be extremely certain was telling the truth.
In fact, I find it fascinating that Brett Kavanaugh, upon hearing that Ford had taken a lie-detector test, decided against taking one himself. Even though they are inadmissible in court, they are still commonly used for other purposes, such as job interviews.
Once both Ford and Kavanaugh had finished testifying, every lawyer in the land who was watching knew that suddenly there was a distinct possibility that the 53-year-old Kavanaugh had now committed a different offense from the one he was accused of committing as a 17-year-old high-school student. That possible new offense was perjury.
In my opinion, that is precisely why the American Bar Association, which has 400,000 members, and the dean of the Yale Law School, where Kavanaugh attended law school, immediately withdrew their support for Kavanaugh’s nomination pending further investigation. They had to realize what every lawyer in the land had to realize: that there was a distinct possibility that Congress was about to confirm a lawyer to the Supreme Court who just might be guilty of perjury. In my opinion, the ABA and the Yale law school dean simply did not want to be part of that, at least not without extensive investigation establishing by some reasonable measure of certainty that no perjury had in fact taken place.
After all, if Kavanaugh did in fact commit perjury and is confirmed to the Supreme Court, how do all those law professors across the land emphasize to all those law students how important truth is to the judicial process? The students would laugh at them to the faces.
Did the Ford-Kavanaugh testimonies leave the respective parties in a he-said, she-said tie, as many laymen believe?
Nothing could be further from the truth. Their respective testimonies show the gulf of difference between Ford and Kavanaugh when it comes to credibility, which is another reason why it is so important to have Mark Judge testify openly and publicly.
Ford’s testimony clearly shifted the scales of justice in her favor. Her testimony was a model of consistency, forthrightness, and honesty.
Critics have pointed out that Ford couldn’t remember the location of the house where she said the assault took place, and she couldn’t remember how she got home. But she had a logical explanation for that loss of memory. Her mind and memory focused entirely on the traumatic event itself, especially since she thought she was going to be raped and even accidentally killed. Since then, many other women who have suffered similar traumas have come forward describing the same sort of memory loss with respect to matters extraneous to the trauma. So have psychiatrists and psychologists who have confirmed this phenomenon.
Laymen, including President Trump, have also pointed out that neither Ford nor her parents reported the assault to the police. First of all, it’s an odd criticism given the fact that they aren’t questioning the truthfulness of her narrative. It seems to me that that’s something someone would say if he were asserting that Ford was making up the story, which neither Trump nor Kavanaugh nor hardly anyone else, as far as I know, is asserting.
Nonetheless, it seems perfectly logical to me why a 15-year-old girl might be reluctant to walk into a police station and report an assault by a teenage boy when she herself was breaking the law against under-aged drinking. Who knows what goes on in the mind of a 15-year-old? But it is certainly not beyond the realm of reasonable possibility that she would have figured that she’s the one who would end up in jail if she went to the authorities.
By the same token, depending on the relationship she had with her parents, it is entirely possible that the last thing she would have wanted to do is confess to her parents that she was at a party with boys without permission and drinking. Lots of 15-year-olds don’t have an excellent relationship with their parents, one that they would make them certain that the parents wouldn’t scream and berate them and ground them for a couple of months for drinking at a party with boys.
Kavanaugh’s testimony was exactly the opposite of directness, forthrightness, and genuineness, something that you would never expect from a lawyer and a judge who is vying to be appointed as a justice to the U.S. Supreme Court.
No, I’m not talking about Kavanaugh’s anger and indignation. You would expect that from a person who is denying what he is claiming to be a false accusation. I am referring specifically to his false, evasive, and dissembling answers under cross-examination by the Democratic members of the judiciary committee.
For example, Kavanaugh told the committee (under oath) that people who Ford alleged were at the party had “refuted” her assertion.
That is a downright falsehood. Such people had said instead that they didn’t recall the party. They have never denied being at the party.
For a layman, that might seem like no big deal. For lawyers and judges, the difference is night and day.
Suppose a client tells his lawyer, “I just don’t remember being at that party” and his lawyer responds, “When you take the witness stand, tell them you were never there.”
If that hypothetical were presented to law students on a final exam in ethics class, I will guarantee you that any student who answered that it is okay for a lawyer to do that would be flunked on the spot. The offense is called “subordination of perjury.” It’s when a lawyer counsels a client or a witness to lie or calls them to the witness stand knowing that they are going to lie.
A person who doesn’t recall being at an event isn’t denying that he might have been at the event. He is simply saying that he might well have been at the event (or not) but simply cannot recall it, one way or the other.
By stating (under oath) that those people had “refuted” Ford’s version of events, Kavanaugh was misleading the committee. Is it possible he made an innocent mistake? Anything is possible, but given his legal education at Yale, which he emphasized is the best law school in the country, his many years of experience as a lawyer and a judge, it is difficult to conclude anything other than he was intentionally attempting to mislead.
That’s how testimony under cross examination is used to break the supposed “he-said, she-said tie.” When someone misleads about one thing, it is permissible to assume that he will mislead on other things.
Consider when Kavanaugh pointed out that it was legal for 18-year-olds to drink. What he didn’t point out was that that legality never applied to him because the law was changed to 21 years old before he reached his 18th birthday. That is what is called a “half-truth.” It’s even worse than a direct lie because it uses truth as way to deceive and mislead.
There was also Kavanaugh’s extreme evasiveness in answering various questions. When asked if he was a heavy consumer of beer or if he had ever blacked out, he declined to answer the questions directly and even became extremely belligerent toward the questioners. There is a big difference between righteous indignation over being falsely accused of a crime and intentionally evading answering questions that are pertinent to an accusation.
For a fascinating analysis of why elites like Brett Kavanaugh feel entitled to lie, mislead, evade, and dissemble, see the following article by Shamus Khan, chairman of the sociology department at Columbia University that appeared in the September 28 issue of the Washington Post: “Kavanaugh Is Lying. His Upbringing Explains Why.”
Some laymen assert that what Kavanaugh did in high school and college with respect to booze and sex and any entries in his high school yearbook relating to such matters are simply irrelevant insofar as his nomination to the Supreme Court is concerned. Ordinary, that might well be true. But when such matters relate to the possibility that someone who might have committed perjury might end up as a justice on the Supreme Court, they become critically relevant.
Among the worst things that could ever befall this country is the appointment of a Supreme Court justice who has committed perjury, which is why it is incumbent on Congress and the president to conduct whatever further investigation is necessary, no matter how long it takes, to ensure with some degree of reasonable certainty that Brett Kavanaugh does not fall into that category.
Mark Judge is obviously a critically important witness in that process. He needs to testify openly and publicly about what he knows and remembers and be subjected to rigorous cross-examination.
