Friday, September 21, 2018

Alternatives to FBI Investigation

by Michael C. Dorf

As the artificial deadline approached for Dr. Christine Blasey Ford to accept the invitation of Senate Judiciary Chair Chuck Grassley to testify by his completely artificial deadline of Monday, word came yesterday that she and her lawyers were trying to negotiate better terms. I  have no idea whether such negotiations will work and therefore she will testify some time later next week, whether she will cave and testify on Monday, whether stalemate will reign and the Republican-controlled chamber will proceed to a vote on Judge Kavanaugh's nomination, or whether some hitherto unimagined new development will take us all in a new direction.

Meanwhile, the claim by Grassley that the FBI can't conduct further investigation following a  nomination doesn't pass the laugh test. Grassley wrote of the Senate: "We have no power to commandeer an Executive Branch agency into conducting our due diligence" (double emphasis in original). That's true, kind of, except that the Senate does have the power to refuse to confirm a nominee unless the Executive Branch does some further work. One might even say that this is, in appropriate cases, a duty of the Senate as part of the "advice" it gives to the president before it gives its "consent."

Perhaps by the time readers encounter this column, Grassley will have softened his position, but even if not, there will be further investigation of Dr. Blasey's allegations. Here I'll examine two possible avenues.

Prof. Ron Krotoszynski notes that if the Democrats win control of the House in November, they can investigate whether to impeach by-then-Justice Kavanaugh based on either perjury charges for falsely denying Blasey's allegations or for the underlying alleged conduct itself. Krotoszynski suggests that such an inquiry would not be futile--even given the fact that Republicans will surely have more than enough Senate votes to defeat removal on a party-line vote--because "Republican senators may find it hard to vote 'no' in the #metoo era."

That strikes me as naive. I believe that at least 34 Republican senators would actually find it easy, regardless of what the House finds.

Nonetheless, a House impeachment investigation, using all the tools at the disposal of the House, would be valuable even if there is no realistic prospect of senators agreeing to remove Kavanaugh. It might clear him. Or it might show what a terrible injustice his confirmation was if, as may happen, that occurs without a thorough investigation by the Senate or the FBI. Either way, the investigation would be useful.

But one need not count on the rather exotic possibility of impeachment. Thorough investigation is occurring already. Investigative reporters are on the job. The New Yorker's Ronan Farrow and Jane Mayer are no doubt beating the bushes. I know personally that the Washington Post has numerous reporters on this story.

I know that because twice in the last few days I have been contacted by WaPo reporters wanting to know what I recall of Kavanaugh from our brief time together as summer associates at Covington & Burling in 1989. (The answer is I recall almost nothing about him from that time other than meeting him and exchanging pleasantries.) If reporters are trying to interview me--a guy who has already said publicly that I don't know Cavanaugh very well, and only that from long after the event in question--they are no doubt tracking down hundreds, if not thousands, of people.

Now, of course the New Yorker, the Washington Post, and other news outlets lack subpoena power, so in that sense they are not perfect substitutes for the FBI or a full congressional inquiry. And lying to the FBI is a crime, whereas lying to a journalist is not, making statements to the FBI more credible.

But investigative journalism has nonetheless played a key role in the #MeToo movement, often catalyzing law enforcement. Hence, I wouldn't count out the possibility that if there were a hearing next week, Democratic senators or their agent could ask questions based on reports that could be published by then. So, for that matter, could Republican senators, depending on what enterprising journalists following the story wherever it leads manage to turn up.

Suppose, however, that the negotiations between Dr. Blasey's lawyers and the Senate Republicans do not yield a breakthrough, so that she doesn't testify. Or suppose that there is a hearing, but that it happens before reporters or government investigators are able to get to the bottom of the matter. If Kavanaugh were then confirmed AND thereafter enterprising investigative reporters were to uncover powerful evidence that Blasey's account is accurate -- corroborating contemporary witnesses, say, or perhaps credible accusations by other women of additional similar incidents -- at that point all bets are off. Why? Because while I disagree with Prof Krotoszynski that even very strong evidence would lead 2/3 of the Senate to vote for removal after impeachment, I think that in such circumstances Kavanaugh himself might choose to step down from the bench--following the path of his friend and mentor Judge Kozinski.

Let me be crystal clear that I have no idea whether any of that is at all likely. Maybe this is all a tragic case of mistaken identity (although Blasey dismissed that possibility yesterday, stating there is "zero chance" that she confused Kavanaugh with another student who resembled him, as proposed by one Kavanaugh ally). My point is that the likelihood of further investigations by journalists holds some peril here for Republicans who want to see a deeply conservative majority on the SCOTUS lickety-split.

I wrote earlier in the week that the stakes for the country of the Kavanaugh confirmation are low because even if Kavanaugh withdraws or is not confirmed, someone with views very much like his would be confirmed quickly but in any event no later than the end of the lame-duck session if Democrats manage to win the Senate in the midterms. I now think I overlooked the possibility that Kavanaugh would be confirmed but end up resigning after further investigation by journalists either vindicates Blasey or turns up other skeletons.

A Republican senator who is eager to confirm Kavanaugh or a like-minded jurist but thinks there is at least some non-trivial possibility that Blasey's allegations are true should want further investigation before voting to confirm him. Otherwise, such a senator risks placing Kavanaugh on the Court with the possibility that he would end up resigning at a time when Republicans no longer control the Senate.

15 comments:

Shag from Brookline said...

Consider the pressure that may build on the Senate floor if the Committee Republicans vote to approve. It may be possible that Senate Leader McConnell may not have the votes to bring it to a vote. Might there result a recess appointment by Trump of Judge K, relieving Republican Senators at least temporarily of political backlash? Would Trump be prepared to take that heat himself with the midterms in the offing? Political polarization can bring about Republicans facing the rock and the hard place. Of course, Judge K might not be willing to accept a recess appointment because of risks entailed with his day job.

Joe said...

I think the #MeToo movement suggests that the effect of Kavanaugh not becoming a SCOTUS justice, particularly now, has some real importance even if someone comparable to him in basic constitutional ideology is chosen instead. The reactions to his involvement with Kozinski and possible lies under oath [as Kate Shaw argues the test for disqualification should be lower here*) about it suggests as much. Ditto the latest thing regarding his apparent model dress code for women clerks.

Anyway, note reference to "Cavanaugh." Who is this person? Has there been some sort of possible mistaken identity? Has Ed Whelan been notified? (I have seen that typo -- if that is what it is -- many places. Spell check is running our lives.)

* https://www.nytimes.com/2018/09/20/opinion/kavanaugh-blasey-allegation-disqualify.html [Prof. Shaw also wrote a good article on use of presidential statements in court.]

Joe said...

I would add that Noam Chomsky, as I recall, once noted that given the reach of let's say involvement overseas in respect to American power, even limited restraint can matter a lot. This is so even if net you might think it still is horrible in action.

So, it would interest me what specific differences another justice from the Trump pool would bring. Since I believe Kavanaugh (and for somewhat different reasons Gorsuch) is bad even in the face of various likely alternatives, this is of particular interest.

Anyway, the reference to the power of the press is appreciated. There are various pressure points here that can affect things. As to pressure to resign (shades of Fortas?) that too is at least possible as compared to some things. A strong impeachment inquiry in the Democratic controlled House or let's call it just an investigatory inquiry, could help there.

For those interested, there is also an ongoing debate over these events at Balkinization Blog where me and Shag also comment.



tjchiang said...

Why is resignation a realistic possibility? If Kavanaugh is an ambitious sociopath who sexually assaults teenage girls, harasses his model-like female clerks, covers for predator mentors, and lies to the Senate about everything--who just put up a good act for all these years--then why suddenly discover a sense of decency when there is no possibility of impeachment or other external sanction? If he had a sense of decency all along, then that makes the likelihood that it is all just a monster-with-good-publicity act much reduced.

Joe said...

"Decency" isn't the only reason he might resign with a comfortable and lucrative alternative source of income available.

There are various pressures, including the pressures of investigatory actions, that might lead to people like him to resign, including pressure from family members.

Michael C. Dorf said...

TJ: I don't know whom you've been reading to warrant the sarcasm, but it can't have been me. I do not assume any of the things you postulate here. On the contrary, I have repeatedly said that from my interactions with him, I regard Judge Kavanaugh as a person of integrity. But adults with integrity can have acted very badly as teenagers, even if only once or twice. People are complicated, as I've acknowledged w/r/t Judge Kozinski: http://www.dorfonlaw.org/2017/12/judges-bossholes-and-coaches.html .

If you want to troll a hysterical liberal, you've come to the wrong blog.

tjchiang said...

Didn't mean to point it at you as such, but it is my impression that there has been a lot of mud-throwing recently at Kavanaugh that is separate from the plausible allegation of attempted rape. And I read you as hinting at those other accusations in your "other skeletons" comment. If that wasn't what you were saying, then it was an uncharitable read on my part.

Back to the substantive point, the point is that if he is a person of integrity, he isn't likely to have done anything that he would regard as worth resigning over (and it would be his decision, given the lack of external sanction), especially if the offense in question is not attempted rape under heavy intoxication 35 years ago as such, but (what I understand to be the more popular theory given that many people have hesitation arguing that the actions of a drunken teenager should themselves be disqualifying today) lying about said attempted rape today. If he isn't a person of integrity, then he won't resign.

I can even posit an intermediate position (i.e., people are complicated) where he is a person with ordinary integrity but also ambition, so that he might feel it is wrong to lie about said attempted rape, but the prospect of a Supreme Court seat is so enticing that he lies anyway. But if that is the thinking, then so much less possibility that he would give up the seat after getting it.

tjchiang said...

To say the substantive point another way, the only situation where Kavanaugh isn't lying today but is still guilty is if he in fact did what he was accused of but was so blind drunk that he doesn't remember it afterwards. If so, putting aside the objective question of whether it is objectively the right thing to do to resign in penance for one's actions as a drunken teenager, I don't see *Kavanaugh* believing that it is the right thing to do to resign in penance.

Alternatively, if he is lying to get to the Supreme Court today, then I don't see a model of human personality where he resigns once the lie is exposed, in the absence of any external pressure that could be brought to bear.

Joe said...

" On the contrary, I have repeatedly said that from my interactions with him, I regard Judge Kavanaugh as a person of integrity."

I have seen this suggested by others but net his actions don't come out as something I would label "integrity." This includes his relations with people he does not seem as equals or worthy of basic respect. Such is the problem.

Shag from Brookline said...

Perhaps tj can explain Judge K's integrity with his earlier this 21st century speech proclaiming that what happens in Georgetown Prep stays in Georgetown Prep, his cute variation on a Vegas saying. Of course Vegas dwells in the "sin" of gambling (as well as other sins that often go hand in hand with gambling). But what should not be divulged about Georgetown Prep? I assume Judge K had and has memories during his elite private hight school days, perhaps some he might not want revealed.

tjchiang said...

I have no interest in defending Kavanaugh's integrity. I do not know him even casually. I do not share his politics. If the alternative to confirmation is that the seat remain empty (rather than, say, get filled by Ted Cruz), I do not wish to see him confirmed.

To the extent that I am upset about something, besides the possibility that attempted rape is being covered up, it is how low both sides have demonstrated they will go. To draw inferences of truly immoral conduct--rather than, say, excessive underage drinking, which is not something to be proud of, but which nobody would consider a truly negative mark against character decades later--from the words "what happens in Georgetown Prep stays in Georgetown Prep" in a public speech is exactly the kind of mud-throwing that I find offensive. I found it offensive when Republicans pulled a power play on Merrick Garland, and I find it offensive that Democrats are now mud-throwing on Kavanaugh. To be clear, I am not saying the Ford allegations are mud-throwing, because there is plausible evidence of real misconduct. I am saying insinuations that statements like "what happens in Georgetown Prep stays in Georgetown Prep" suggest serious misconduct is mud-throwing, since to me they suggest nothing more than some underage drinking and partying. And I find this mud-throwing not only harmful to decency in the process but also that it makes it far too easy to dismiss Ford's more credible accusations.

I do want to thank Shag from Brookline, though, for providing me with a perfect rebuttal to Mike's statement that if I "want to troll a hysterical liberal, [I]'ve come to the wrong blog." I will accept that Mike never intended to question Kavanaugh's integrity in his "other skeletons" comment and I misread him there. But the sentiment I was being sarcastic against clearly has relevance given the above.

Michael C. Dorf said...

TJ: Thanks for the clarification. To be clear, my reference to other skeletons was purely conditional.

Shag from Brookline said...

Of course everything did not stay in Georgetown Prep as revealed by Judge K's classmate Mark Judge in the latter's memoir "Wasted" describing his alcoholism and partying leading to to his alcoholism. tj's "nothing more that some underage drinking and partying" suggestion seems a tad naive, considering the steps taken by Judge K's friend Ed Whalen's tweets suggesting by name a classmate of Judge K who may have committed the sexual assault. Whalen removed the tweets when it appeared that his tweets might be defamatory and he apologized. There are suggestions that Whalen's steps were taken in coordination with Judge K's confirmation enablers. I understand the tweets have been preserved.

I appreciate ti's prescient powers of sarcasm.

Joe said...

Somewhat off-topic, the author of the post (and Sandy Levinson, who blogs someplace we also visit) has a contribution to a Heller symposium:

https://dlj.law.duke.edu/dljonline/

If Shag wants some more reading material.

Shag from Brookline said...

Joe, thanks, I may get to that symposium's papers later today, if I survive the Sunday morning TV political shows.

Back on topic, following my morning Internet review on the ongoing Judge K confirmation hearing, it appears that certain unintended consequences may have resulted therefrom, including: it appears that what happens in the legal academy community DOES NOT stay in that community. Perhaps in time more will be said on this unintended consequence, which may be in the end a good thing.