Was it the junior prom, the senior prom, or just a high-school party?
Was the alleged victim of Kavanaugh’s sexual assault 15 or 16?
Were there four boys there, as she told the therapist, or two, as she says now?
Did Kavanaugh’s friend, who strongly denies the incident, participate?
Why do the three named witnesses fail to back up the alleged victim’s story?
The alleged victim cannot recall the year or the location, admits drinking, and states that one (or is it three?) other boys were also present. And now we hear that another girl may have been present. Is such a vague memory to be weighed more heavily than 35 (or is it 36?) years of exemplary behavior?
Why did the alleged victim wait 35 (or is it 36?) years to come forward?
Why do the media refer to this interval as “over three decades” rather than admitting the alleged victim’s vagueness?
Why did Sen. Dianne Feinstein refer the complaint to the FBI, which has no jurisdiction, and in any case the statute of limitations ran out long ago?
And even if it had not run out, would Kavanaugh now be tried in juvenile court at the age of 53?
Why is this news?
The answer to all these questions is: I don’t know, I can’t know, and I don’t care. Nor do I care what Dianne Feinstein did at her junior prom, nor what Kamala Harris did at hers, though I suspect she spent the evening looking for people to interrupt. The only thing I can say with 100 percent certainty is what I did at the junior prom: I didn’t go.
How did Kavanaugh, and Clarence Thomas before him, manage to reach middle age with spotless reputations, and only when they were nominated for the Supreme Court did allegations of sexual transgressions appear? As lawyers say, this doesn’t pass the smell test.
If the alleged victim is unclear about the time and the place, is it possible that she is also uncertain who was the assailant? If the alleged assault took place at another time or place, could the assailant have been another boy? The confused timeline cast doubt on whether it was Clarence Thomas or another man who sexually harassed Anita Hill. Could the same uncertainty exist here?
Many people believe that memory is like a DVD or videotape ‒ it remains the same and can be accessed whenever we please. But memory is more like a computer document ‒ it can be altered every time we access it, and it may degrade over time.
My wife is a clinical and forensic psychologist. When she was studying for her Ph.D., she was assigned a classic textbook: “Eyewitness Testimony” by Dr. Elizabeth Loftus. The uncertainties of eyewitness reports are detailed. The professor teaching the course, who had testified as an expert witness in dozens of criminal trials, gave this advice to his students if they were to do the same: Get the check first. His extensive experience with the legal system had left him only with cynicism.
As a result of work by the Innocence Project, over 350 convictions have been overturned by DNA or other evidence. Eyewitness identification can be tragically unreliable.
In a classic experiment, two men run into the classroom. One pretends to stab the other with a rubber knife, and they run out. Students are asked to write down what happened. Almost half will say that the victim stabbed the assailant. Are they liars who deserve to be arrested for making false statements? No, they are human, and memory is fallible. Note that this is immediate, not over 30 years later, when some students might say that the professor was the assailant ‒ if they remembered the incident at all.
As Prof. Alan Dershowitz explains, if I tell a federal agent something, and another person tells something different, one of us can be charged with the felony of making false statements ‒ the one the prosecutor dislikes. This is true even if (1) no third person verifies the story, (2) no independent evidence corroborates the story, (3) there is no proof of intent to deceive, (4) there is no provable underlying crime, (5) the statement was not made under oath, and (6) no Miranda warning was given.
They tell us, “If you see something, say something.” But their actions teach us, “Keep your mouth shut, and ask for a lawyer.” If there is a more destructive lesson to teach in the era of international terrorism, I have yet to hear it.
If you doubt this, ask Martha Stewart. The feds could not prove insider trading. But because Stewart’s broker told a different story, and a written document contradicted what she said, she was convicted of making false statements and sent to prison. Unless she is pardoned, for all her life she will remain a convicted felon, unable to hold a corporate office, unable to get a security clearance, unable to be bonded, unable to touch a firearm, and (depending on state law) unable to vote. But was she lying, or merely demonstrating the unreliability of memory?
Or ask Lewis “Scooter” Libby, Vice President Cheney’s chief of staff. The special counsel tried to find evidence that Cheney illegally outed an undercover CIA agent. But in fact, the agent was no longer undercover, and she was outed by someone else. Nevertheless, Libby was questioned for many hours over days. At some point he contradicted himself, or contradicted media personality Tim Russert. Of course, media personalities are not indicted. So Libby was convicted of making false statements. Eventually he was pardoned by President Trump. But was he lying, or merely demonstrating the unreliability of memory?
Or ask Lt. Gen. Michael Flynn, formerly National Security Advisor to President Trump, Flynn was told that FBI agents wished to see him. He was not told it was an official interview, not just a meeting. He was asked about conversations with the Russian ambassador. The FBI already knew what was said ‒ they had tapped the phone. But Flynn was not told that, either. So why did they ask Flynn, if not to trap him?
Flynn’s account of the conversation differed from the transcript of the taps, so he was charged with making false statements. He was awarded many decorations over 33 years of service to his nation. But his real reward? A felony conviction.
Did Flynn lie, or merely fail to remember? And if he did lie, was it out of malice, or out of ingrained habit from many years in intelligence: Tell only those with a need to know. But no matter, his statements were incorrect. To save his family from bankruptcy from legal bills, and to save his son from similar charges, he pled guilty.
How does this differ from extracting confessions by torture? True, we no longer have Torquemada using the rack ‒ we have Mueller using the legal system. But is the result any better, either factually or morally? Both the Inquisition and the Nazis extracted confessions by threatening family members. The Nazis called this Sippenhaft. We should call it criminalizing political differences.
What Brett Kavanaugh did at a high-school party more than three decades ago is not merely of no interest to me ‒ I do not want to hear it. The Bible teaches us not to go around spreading slander. It would be well if we heeded this lesson. Otherwise, it may be we who are prosecuted, and our character that is maligned.
If Democrats didn’t have double standards, they wouldn’t have any standards at all. They won’t forgive Kavanaugh despite his unblemished record as an adult. In contrast, the Los Angeles Times carried two opinion pieces opposing him. Both articles quoted the late Sen. Robert Byrd (D-W.Va.), who said he would vote against Clarence Thomas because no one had a right to a Supreme Court seat.
But was this the real reason Byrd opposed Thomas? Could Thomas’s color have played a role? Neither Times article mentions that Byrd had been Exalted Cyclops of the KKK. That is, forgive Byrd for what he surely did, for years, as an adult ‒ and actually quote him as an authority on how to treat nominees to high office. But don’t forgive Kavanaugh for something unprovable that he might have done for a few minutes in high school.
What about Sen. Cory Booker, one of Kavanaugh’s harshest questioners. He admitted groping a girl at (you guessed it) age 15. And don’t get me started on Ted Kennedy, the “Lion of the Senate.” Democrats’ forgiveness is rationed out to (surprise!) Democrats.
Neither Stewart, nor Libby, nor Flynn had committed provable crimes until the investigators arrived. Back where I come from, officials investigate crimes that have already occurred; they don’t manufacture new ones. Back where I come from, officials investigate crimes to discover who committed them; they don’t investigate people to see if they can discover a crime.
I come from America. It’s a nice place to visit, but it’s a really great place to live. One day I hope to live there again. A good way to make that day come sooner is to end politically motivated prosecutions and character assassinations.
Show me the man and I’ll find you the crime. ‒ Marshal Beria, head of the Soviet Secret Police
What office do I go to to get my reputation back? ‒ Raymond J. Donovan
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