Free Speech

The Justice Department and Allegations Against Federal Officeholders

Hard to see what President Trump was referring to with regard to the New York Times story with new allegations about Justice Kavanaugh.

|The Volokh Conspiracy |

I'm skeptical about the latest allegation about Brett Kavanaugh's supposed misdeeds in college, published in the New York Times:

We also uncovered a previously unreported story about Mr. Kavanaugh in his freshman year that echoes Ms. Ramirez's allegation. A classmate, Max Stier, saw Mr. Kavanaugh with his pants down at a different drunken dorm party, where friends pushed his penis into the hand of a female student. Mr. Stier, who runs a nonprofit organization in Washington, notified senators and the F.B.I. about this account, but the F.B.I. did not investigate and Mr. Stier has declined to discuss it publicly. (We corroborated the story with two officials who have communicated with Mr. Stier.)

According to Mollie Hemingway, the book on which the article is based (which is not yet released but which she has read),

notes, quietly, that the woman Max Stier named as having been supposedly victimized by Kavanaugh and friends denies any memory of the alleged event.

I'm hesitant to credit a statement by a third party from 35 years ago, about supposed misconduct by Kavanaugh (or perhaps by his friends, depending on the nature of their "push[ing]"), without any statement by the woman who was the alleged victim. I wouldn't vouch for my memories of drunken parties in 1983, and I would be skeptical of others' memories. It's also odd, as Hemingway noted, that the Times story wouldn't mention the woman's denying any memory of the supposed incident (assuming that Hemingway's account of the book is correct).

[UPDATE: The Times has posted a correction: "An earlier version of this article, which was adapted from a forthcoming book, did not include one element of the book's account regarding an assertion by a Yale classmate that friends of Brett Kavanaugh pushed his penis into the hand of a female student at a drunken dorm party. The book reports that the female student declined to be interviewed and friends say that she does not recall the incident. That information has been added to the article."]

But regardless of this, I just can't see how "the Justice Department should come to [Justice Kavanaugh's] rescue" on this matter, as President Trump suggests:

There is no federal criminal libel statute, nor can the federal government bring a civil lawsuit on behalf of an allegedly libeled officeholder. The theory that the allegations "are trying to influence [a judge's] opinions" doesn't help, it seems to me. Some state extortion statutes do make it a crime to threaten to publish a libel as a means of coercing someone to do something, e.g.,

Whoever …  maliciously threatens to accuse or accuses another of any crime or offense, or threatens … with intent thereby … to compel the person so threatened to do any act against the person's will or omit to do any lawful act, is guilty of a … felony.

The federal threats statute ("Whoever, with intent to extort … any … thing of value, transmits in interstate … commerce any communication containing any threat to injure the … reputation of the addressee or of another … shall be [guilty of a felony]") could also be read as covering such threats, on the theory that an action by a judge is a "thing of value." But extortion bans require a much more explicit quid pro quo (do X or I'll falsely accuse you of Y): Merely publishing some supposedly libelous accusations, even with the understanding that one would continuing doing so, wouldn't qualify.

Congress has never enacted a criminal libel statute, and the U.S. Supreme Court has expressly held that there is no federal common-law crime of libel. A federal criminal libel law can't be smuggled in through the back door of the threats statute, in the absence of a true threat.

So Justice Kavanaugh could, of course, sue for libel, though for practical reasons that's rarely a good idea for a sitting official, even one who genuinely has been libeled. But the Justice Department, it seems to me, has no legal role here.

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  1. They just never give up, do they?

    1. “They” have learned the lesson that McConnell, et al., have amply demonstrated, which is that there is no political price to pay for sheer audacity.

  2. My immediately thought (re the woman’s statement that she does not remember this) was that–making the BIG assumption that the story was true–he picked an intoxicated women to do this to. I find that plausible. But absent that; it does seem like something one would remember.
    Did Max mention this to other people at/near the time of the alleged incident? If not, then it seems to have essentially zero credibility.

    As your OP points out; my above analysis is completely separate from what President Trump tweets. But by now, I think we all understand that he is some version of a moron. So, idiotic tweets are–and ought to be–mentioned. But I literally cannot think of a future tweet where I’d go, “Wow, it is really surprising to see that thought come out of our president’s mouth.”

    In other words; this is a ‘dog bites man’ story.

    1. “he picked an intoxicated women to do this to.”

      The story doesn’t say that he “picked” anybody. If he didn’t give affirmative consent to having this penis pushed into someone’s hand, then he’s a victim of sexual assault. And if the woman, intoxicated or otherwise, participated in any way, then she’s one of the perpetrators.

        1. I agree. It’s a Big IF that this actually occurred.

          However I’m not surprised that Progressive Dems, especially Presidential candidates & Congressional members, once again go with unsubstantiated rumors from Progressive Propagandists.

      1. Um.

        Except you can’t have your penis pushed into someone’s hand if you keep your pants on.

        1. Seems like you’re blaming the victim here.

        2. Armchair is right.

          Why oh why do we have to live in a world where a man can’t whip out his penis at a party with friends without those friends grabbing his penis (gay much?) and guiding that penis to the hand of a female (victim? evil accomplice??)? I remember the good old days when I could pull down my pants in crowded places, expose my penis, and have it be consequence-free.

          Now it’s a world gone mad, where people, somehow, want to place blame on the guy taking out his penis. Sad.

          Frankly, I blame Obama. And women. Somehow, I’m confident that it’s all their fault.

          1. So he deserved to be sexually assaulted because his pants were down? Do you people hear yourselves? Proving again that Democrats are the real sexists.

            1. (Well, I am a Republican, so your premise is off.)

              I have no problem with his friends being charged. I actually do think that people should not have their genitals grabbed, even if one makes a conscious decision to display them in public.

              But there is NO evidence that the woman participated voluntarily in this. And since God gave me a brain, I am assuming that BK consented to having his penis placed in that woman’s hand. (Unless his penis can be removed from his body at will, I do not see how you get the penis to move across a crowded room unless you also get the, um, penis ‘owner’ to also walk across that room.

              It’s the idiotic remarks about somehow blaming the woman that bother me. Now, I like a sexist smart-ass dumb comment as much as the next guy. But the “Hey, let’s deflect by pretending to blame the woman!” argument is wearing thin.

              1. “But there is NO evidence that the woman participated voluntarily in this.”

                Trivially so, since that would require evidence that it happened in the first place.

                1. ” that would require evidence that it happened in the first place.”

                  You mean like, say, a witness’ testimony?

                  1. The only supposed witness is a Clinton connected lawyer who’s allegation the FBI declined to pursue during the confirmation hearings. Odds are, it never happened.

                    1. He’s well-respected on both sides of the aisle, and no one is saying he’s someone who would make this stuff up. The Clinton-connected attempt shows how weak a case you have.

                      That FBI investigation being a sham doesn’t say a lot about the credibility of all the people it ignored.

                  2. I’m going to have to distinguish between the testimony of the person making the allegation, and actual evidence. The evidentiary value of an accusation is minimal. Are there contemporaneous records? Witnesses who aren’t the accuser?

                    False accusations made for political effect have gotten too cheap and risk free, though “profitable” and risk free might be more accurate. This has to factor into how seriously you take them.

                    1. In cases like this, what else do you have than corroborating evidence? In this case, lots of corroborated evidence of multiple events.

                      I would note that your logic leaves Bill Clinton off the hook as well.

                    2. “I’m going to have to distinguish between the testimony of the person making the allegation, and actual evidence”

                      I’m going to have to distinguish between whatever it is you’re doing and actually making meaningful contributions to the discussion.

                      Witness testimony is “actual evidence”. I get that you want to disregard “actual evidence” that doesn’t support your preferred outcome. Pretending it doesn’t exist just gets you laughed at.

                      (If I could figure out how to embed a sound clip, you’d be hearing laughter right now.)

                    3. In this case, lots of corroborated evidence of multiple events.

                      Jesus…you’re even more delusional than I thought.

                    4. “I would note that your logic leaves Bill Clinton off the hook as well.”

                      Blue dress.

                      Also, Monica was able to provide dates and times when she visited the president. White house logs and other witnesses confirmed that she was indeed with the president at the time. The Dem’s famously denied that her testimony, plus the blue dress, plus his admission of an encounter, plus corroborating evidence from white house logs and witnesses, was enough to prove that he lied to the grand jury about their contact.

                    5. “I would note that your logic leaves Bill Clinton off the hook as well.”

                      Furthermore, Juanita Broaddrick immediately called her friend, and told her that Bill Clinton raped her. The friend came to the hotel room and saw that Broaddrick had a bloody lip where Clinton had bitten it. No one investigate that allegation, either, except for Ken Starr determining that it was out of the scope of his investigation.

              2. “But there is NO evidence …” any of these reconstructed memories are of events that actually happened.

                Originally, the sixteen Oct-Dec 2018 stories I filed in my folder on Ramirez’ allegations include: “CBS reported: “Ramirez has admitted that she doesn’t remember all the details from the night in question and reportedly said she can’t be absolutely sure it was Kavanaugh who exposed himself to her.” “ That was on Ramirez’ FBI interview.

                I could find nothing new or more credible in Robin Pogrebin and Kate Kelly, “Brett Kavanaugh Fit In With the Privileged Kids. She Did Not”, The New York Times, 14 Sep 2019.

              3. “But there is NO evidence that the woman participated voluntarily in this.”

                There’s very little evidence that it happened at all.

                And NO evidence of a lack of consent on the woman’s part, which is where the burden of proof is.

                But the allegation is that the penis was pushed onto the hand, and there’s no allegation that the hand was pushed anywhere.

                If the allegation were that a woman’s hand was pushed onto Kav’s penis, we would assume that Kav was complicit and the woman was the victim. But here we have the opposite.

              4. But there is NO evidence that the woman participated voluntarily in this

                Uh, isn’t there NO evidence that she didn’t? Based on the NYT report, the guy doesn’t even make that allegation.

              5. ” I am assuming that BK consented to having his penis placed in that woman’s hand. (Unless his penis can be removed from his body at will, I do not see how you get the penis to move across a crowded room unless you also get the, um, penis ‘owner’ to also walk across that room.”

                Pushing, remember? You can bring the penis to the hand, the hand to the penis, or some combination of the two. Of course, the hand has to stay put, or you just have a penis chasing a hand around a room. And since the only mention of any force (I don’t know how you handle this type of situation, but I typically don’t ask friends to help put my penis anywhere) was against Kavanaugh, I don’t see why we should assume he, and not the person with the hand, consented.

          2. Santa…..

            Perhaps illustrating this from the opposite gender perspective will help. Hypothetically “Sally” exposes her breasts at a party. Her “friends” then force her into putting her breasts into the hands of “Joe”. Any assault is really “Sally’s” fault, because she exposed herself.

            Is that what you’re saying? Because from your tone, it really sounds like it.

            1. Your mistake is assuming that “fault” is an “either/or” kind of a thing, when it is an “and” kind of a thing.

              1. So you’re saying that when a woman wearing revealing clothing in public is raped, she’s at least partly to blame for it.

                1. Yep, my exact thoughts. James is saying if a woman is raped, it’s her fault, because she was wearing a short skirt.

    2. “But I literally cannot think of a future tweet where I’d go, ‘Wow, it is really surprising to see that thought come out of our president’s mouth.'”

      How about any acknowledgement of a truth that goes against his interests, of a kind that typically prompts the reaction, “Now that showed class”?

  3. I don’t think Trump thought about it much beyond his belief that the Justice Department should do law stuff to help him and people he likes, and should do law stuff to hurt people he doesn’t like.

    1. Trump’s logic
      1: This is clearly another false allegation in a line that have ranged from possible if vague to absurd.
      2: It’s not only unconfirmed, but actively refuted by everyone involved, including the very woman he supposedly “assaulted”. Despite this, the accuser and the media have ran with it anyway.
      3: There clearly must be some penalty for making false allegations.
      4: Legal people, do something!
      Trump’s not a lawyer. Many people on this site have said similar things. The logic is fairly straightforward.

      While Kavanaugh can pursue civil cases against false accusers, that’s typically been a faux-pas in general and beneath a Justice in specific. In this case, however, I have to say, Trump has a point. This has become a pattern, one that has actively altered how politicians act, to the detriment of everyone.

      There has to be some sort of penalty, civil or criminal, for doing this.

      1. For doing what? For accusing a high office-holder of long-ago misdeeds on the basis of proffered evidence which inexplicably went uninvestigated?

        1. Proffered allegations, not proffered evidence.

          We need to get over this insane notion that accusations are their own evidence. That might, to some limited degree, have been true in a world where making accusations against powerful people was risky. Not in a world where you get a gofundme account and rake in the money.

          1. “Proffered allegations, not proffered evidence”

            Witness testimony is evidence, Brett. See, e.g. FRE 602.

            1. Witness testimony is evidence, Brett. See, e.g. FRE 602.

              Can you verify that FRE 603 was satisfied in this case?

      2. ” It’s not only unconfirmed, but actively refuted by everyone involved”

        We appear to have entirely different meanings for the phrase “actively refuted”, since this article lists exactly one person “actively refuting” the events, and he isn’t alleged to have even been there.

      3. As I read Trump, he is serious about points 1, 2, 3 and he is hyperbolic and rhetorical about point 4 to make people tweet about it.

        Thank God I don’t have a Twitter account and can avoid most of this bird brained twitter from everyone.

      4. “Trump’s logic
        3: There clearly must be some penalty for making false allegations.”

        Unless they’re made by birther-in-chief.

  4. Look on the bright side. We now have two sitting Justices who are victims, personally, of the epidemic of false accusations of sexual misbehavior sometimes known as #MeToo. That is bound to affect their rulings in any cases arising from such an accusation. And soon enough there will be five. The female supremacists have shot themselves in the foot.

    1. The female supremacists

      Good luck with that.

      1. Yeah, anybody who takes that “Women never lie about these things.”, “Always believe the woman.” stance, is a female supremacist.

        But, of course, most only take that position when the accused is a Republican, so they’re just left-wing oportunists.

        1. I too remember when noted right-winger Harvey Weinstein was accused of rape.

        2. You know, I haven’t heard many say women never lie about these things. I haven’t heard women always lie either.

          That’s why corroboration is important.

          1. Where have you been? People were screaming “#BELIEVEWOMEN” and “#ISTANDWITHFORD” based on ABSOLUTELY no evidence.

          2. Not to disagree with your comment about the importance of corroboration, when you say “I haven’t heard many say women never lie about these things”, I have to think that you haven’t been paying attention.

            J O’Sullivan (1985) documented a widespread belief that “no woman would fabricate a rape charge” (p.22)
            S Estrich (1985) “The whole effort at reforming rape laws has been an attack on the premise that women who bring complaints are suspect” (p.61).
            W Kaminer (1993) “It is a primary article of faith among many feminists that women don’t lie about rape, ever; they lack the dishonesty gene” (p.67)
            A Dershowitz (1993) reports that he was accused of sexual harassment for discussing in class the possibility of false rape allegations.

            California requires that jurors be explicitly told that a rape conviction can be based on the accuser’s testimony alone, without corroboration (Associated Press, 1992; Farrell, 1993).

            1. Well, since just about all crimes (treason is the only exception that comes to my mind) CAN have a conviction based on an accuser’s testimony alone, I’m not too chuffed about a jury being told this. But if it’s only told to a jury in cases of rape, then I agree with you that this special treatment is unfair.
              (I think that in some Arab countries, there *must* be evidence from other witnesses, etc, and that, therefore, one cannot convict in cases of rape based only on the alleged victim’s testimony. If I were a prosecutor and there was a member of my jury from one of those countries, I’d definitely want to make sure he/she knew the different standard we have from those particular Arab countries.)

              1. What you’re getting at in some nations using some versions of Islamic law (realizing I’m practically saying “some people did something…”) is that under some evidentiary rules the number of concurring witnesses is what matters, and it takes two female witnesses to match one male witness, so in a literal case of he said she said the “tie” goes to the male, regardless of any credibility determinations.

              2. I may be wrong but under some version of Muslim law a man can only be convicted upon testimony of 3 witnesses and women, victim or otherwise don’t count.

                1. Rsteinmetz was closer to what I–with absolutely no effort to verify–was thinking about.

            2. “California requires that jurors be explicitly told that a rape conviction can be based on the accuser’s testimony alone, without corroboration (Associated Press, 1992; Farrell, 1993).”

              Which is unfortunate, a conviction for any crime, not just rape, based on the uncorroborated testimony of a single witness, should be very rare.

              Given a choice between presuming that the accused is guilty, or presuming that the witness is lying, we don’t have sufficient evidence to believe one or the other beyond a reasonable doubt.

              1. It’s dubious enough where we can presume that the supposed witness could have no motive for lying; A passerby testifying that, yes, they saw the accused running out of the bank carrying a sack, perhaps.

                Where political motives could explain why somebody might lie, we should give basically no credence to unsupported accusations.

                1. I would like to think at least evidence of a rape exists before convicting based on one person’t testimony.

                2. “A passerby testifying that, yes, they saw the accused running out of the bank carrying a sack, perhaps.”

                  Not even then. On the one hand, why would the passerby lie? On the other hand, why would the defendant take the huge risk of stealing money from the bank? There are much better ways to get money.

                  1. ” There are much better ways to get money.”

                    Which is why you never hear about banks being robbed. It just doesn’t happen.

                    1. “Which is why you never hear about banks being robbed.”

                      Sigh. Yes, banks get robbed. And witnesses lie. That’s the point. It’s not that difficult to grasp.

                3. Always great to observer birthers offering tips on evidentiary standards.

                  Carry on, bigoted rubes. Until you are replaced.

                  1. How did the ball waxing go, Arthur? Were there tears in the girl’s eyes when she applied the wax?

        3. Keep throwing feces and see what sticks

    2. epidemic of false accusations of sexual misbehavior

      There is not an epidemic of false accusations. And the accusations against the two sitting Justices haven’t been proven false.

      1. The accusation against you, that you pushed a goat’s penis into your priest’s hand, hasn’t been proven false either.

      2. Well isn’t it great that we’re all considered guilty until proven innocent?

        Wait…

      3. If an accusation denied by everybody who was claimed to have witnessed it doesn’t count as proven false, you’re setting the bar for “proven” too high.

        1. “If an accusation denied by everybody who was claimed to have witnessed it doesn’t count as proven false”

          So the accuser denied the accusation? Or did you stumble over your words, there?

          1. In the Kavanaugh accusations the accusers’ named witnesses did not back their stories.

            An accuser is the plaintiff. The accused is the defendant. Defense attorneys are advised that plaintiffs may be called by the defense as witnesses, but don’t expect anything productive. Defendants can always invoke the Fifth (I’d prefer Southern Comfort black label).

            I suspect most folks’ idea is that witnesses are third parties beyond the accuser-plaintiff and accused-defendant.

            1. In the Kavanaugh accusations the accusers’ named witnesses did not back their stories.

              In the Ramirez case no one has checked. The FBI was not allowed to contact suggested witnesses.

              Try to keep up.

              1. In the Ramirez case no one has checked. The FBI was not allowed to contact suggested witnesses.

                The media was allowed to do so, and did, and couldn’t find a single person to corroborate her claim. And given that she herself admitted she didn’t know…

            2. The 5th cannot be used against you for your own crimes, but for someone else’s, can it be used as defense?

              1. When you try to refuse to cooperate in convicting, say, your buddy, you may get cited for contempt for refusing to answer. On the other hand, there are occasional cases where the witness might face charges for other crimes, and still successfully invoke the 5th. Like everything else in the law, it’s amazingly complicated and only partly makes sense.

            3. Seriously? Southern Comfort?
              I prefer Bushmills, 16 year, three wood. Nectar from G-D!!! 😉

  5. The Justice Department can get them on some other random crime they may have committed. There are thousands of crimes. Investigate enough and they’ll probably find something. Or they’ll end up committing a process crime during the course of the investigation. If Mueller can do it, anyone in the Justice Department can do it.

    I’d rather we reformed those laws so something like that is no longer an option. But second best would be to focus abusive procedures on people who don’t believe in due process or presumption of innocence.

    1. Yes, lets start arresting reporters, that’s sure to end with good things for America.

      1. Obama had a filmmaker arrested to validate a phony cover story.

        Roger Stone is an author and writer. Mueller had him indicted on process crimes.

        Where was your concern for America then?

        1. I’ve posted about concerns with the Obama admin’s position on the press and whistleblowers.

          And FBI thuggery knows no administration.

          1. The left loves FBI thuggery when they can use it to advance their power. Maybe if the NY Times sees it first hand we can get some support for reigning it in.

            1. Excusing your lust for thuggery is getting weaker. It’s just to teach the NYT for the left loving thuggery.

              Sorry about your fascism.

              1. Applying the process the way Obama and Mueller applied it is fascism? I agree.

                1. Whatever Obama and Mueller did, they didn’t jail reporters for reporting public things that they didn’t like. Your case is so weak, and your pivot to ‘b-b-b-but Obama’ is so transparently a distraction, I again return to wondering whether you just want the government to go full on against the liberal media.

                  1. It’s not a distraction. I’m against double standards.

                    If Obama and Mueller behaved a certain way and it was deemed acceptable, then that same standard should apply to Trump and Barr and everyone else. Reporters have no special privilege Roger Stone and the rest of us don’t have.

                    1. You hate other people’s double standards so much you’ll end our republic to standardize them.

                      And, as noted above, what you’re advocating isn’t the parallel of Obama acting against whistle blowers of Mueller leaning on someone in his investigation.

                      Again, pointing elsewhere at people who did something you don’t like isn’t some clever way for you be okay with something you supposedly didn’t like.

                    2. Ben, if you want a single standard, then demand the FBI investigate the allegation, rather than ignore it. There really is not cause for right wing complaint here.

                      A witness came forward, with alleged eyewitness testimony. The nature of the alleged act ought to have made it sufficiently memorable among corroborating witnesses, if there were any, that useful investigation was at least a possibility. The FBI did nothing, apparently because it was politically constrained. Under those circumstances, yeah, the stink is going to hang around, and the politicized justice administrators who did nothing to clean it up have themselves to blame.

                      Also, there were evident far-reaching hazards associated with ignoring charges against Kavanaugh. Despite that, a decision was made—by whom remains murky—against thoroughly investigating those charges, and putting them away if nothing could be found. An inexplicable short deadline for conclusion of the investigation was imposed. It was both reckless, and a predictable source of suspicion, that the investigation’s overseers rushed it to a conclusion.

                      Now those far-reaching hazards are being realized, as anyone could have predicted they would be. The problem was compounded by Kavanaugh’s own conduct and utterances during the hearing—conduct sufficiently bizarre that sober third parties with no ax to grind decided that the conduct and utterances were a sufficient disqualification by themselves. When the testimony at the hearing was complete, it ought to have been plain to the political right that this guy was the wrong choice as an ideological pick for the court. He should have been withdrawn and replaced with some other over-principled ideologue.

                      Apparently that could not happen because Trump is never wrong. If you keep supporting that, you ought to expect to keep getting this result.

                    3. “If Obama and Mueller behaved a certain way and it was deemed acceptable”

                      So, if one person, anywhere, says “I’m cool with that”, then it also must be cool for anyone else, anywhere, to do the same thing, for all of time?

                      Yeah, there shouldn’t be any trouble running with THOSE scissors…

                    4. Playing by Obama’s and Mueller’s rules will be the end of the republic now?

                      This particular end of the republic came when institutions like the news media, universities, and law enforcement were taken over top-to-bottom by people who don’t care about facts or truth and will happily lie whenever they can escape consequences.

                      If you don’t want the end of the republic to accelerate and become inevitable, then stop reflexively defending obvious evil behavior by the likes of Kavanaugh’s accusers and the NY Times.

                    5. Once again, targeting reporters you don’t like is not ‘playing by Obama and Mueller’s rules.’

                      The distractions you continue to bandy about are not anything like what you’re advocating.

                    6. The news media are not special — especially since they have betrayed their very reason for existing with their partisan lying and coverups. If anyone has it coming, it’s them.

                    7. I have a suggestion for you Ben_. You don’t like the news media? Found one, and do it yourself. On the long-shot assumption you have what it takes to not collapse in a heap, it would not be too long before you discovered a dawning and growing respect for the media which do it well, like the NYT. But I suppose if you did have what it takes, you would not now be ranting against the above-average media. So nevermind.

        2. Obama had a filmmaker arrested to validate a phony cover story.

          Citation please.

          (and if you mean Dinesh D’Souza we are just going to laugh)

          1. I assume he’s talking about the Innocence of Muslims guy.

            1. hmm.. he was arrested for violating parole conditions (he was a convicted fraudster) to which he pleaded guilty. The video he made certainly drew attention to himself, but that was not the official reason for his re-arrest. You are free to believe otherwise.

              1. I don’t think anyone doubts what the official reason was, just whether it was the actual reason. Because the President said so, after all.

              2. And when the Justice Department gets these Kavanaugh accusers on something, the crime won’t be accusing Kavanaugh. It will be tax evasion, or mail fraud, or lying to the FBI, or any one of a thousand other crimes.

                That was the point.

                Obama had Sam Bacile arrested because he had a cover story to sell before the election. “Need a cover story for a few weeks” wasn’t the official charge.

              3. “official reason”

                Which are always 100% accurate.

                Can you spell “pretext”?

                The official reason also does not explain why they did it at night with swat teams etc after making sure the press was there. A call to the guys lawyer is the normal method in such situations.

              4. No, he was singled out for prosecution because he was politically troublesome for the powers that be, in violation of equality before the law, and in violation of the principle those in power should not use the power of investigation to hurt political enemies (or uppity commoners.)

                Nobody would have ever done any of this but for misuse of constitutional power in opposition to its design.

            2. “The video he made certainly drew attention to himself, but that was not the official reason for his re-arrest.”

              Why, yes, the Obama state department lied and claimed that his video caused the murder of a US ambassador, but that wasn’t the official reason for his re-arrest. Nothing to see here, folks. Move along.

              1. “Why, yes, the Obama state department lied and claimed that his video caused the murder of a US ambassador”

                Well, they said his video led to unrest in Egypt (which it did). Benghazi isn’t in Egypt.

                1. “Well, they said his video led to unrest in Egypt (which it did). Benghazi isn’t in Egypt.”

                  And she said that the unrest in Egypt sparked unrest in Benghazi, which led to the attack. This was false.

                2. Amazing how an obscure YouTube video, that had been up for over a year, all of a sudden caused unrest in Egypt. Which, according to the HRC State Dept, led to unrest in Benghazi not Libya nor Libya’s capital Tripoli, only Benghazi.

      2. Given that the public doesn’t yet have the moral courage to support gassing them, arresting is the next best thing.

        1. Just out of curiosity, how many people would you be comfortable gassing? Any age limits? Are you more comfortable with the government doing it or would you be a willing executioner? Is there a number of people you would be comfortable personally killing? Would you assist in burial?

          Do you prefer gassing because it’s “cleaner”? Why not guns or machetes? Does the reality of killing scare you a bit?

          Which societies that engaged in mass killing do you think we should emulate? Which mass killers do you admire? Based on your knowledge of history, can you point to a government or society that used mass killing as a matter of policy that have been generally viewed as moral?

          After considering the mechanics of how you would kill your opponents do you still consider yourself a good and moral person? Are you a troll? Or is this post just another exhibit in your eventual federal criminal trial?

          1. I’m not really one for violence. I’ll leave that to other men.

          2. He’s so outrageous I sometimes wonder if he is a plant, a troll to insinuate himself on one side, to make it look ridiculous.

            1. He’s a troll, but if he’s false-flag, it’s because he’s Russkiy pretending to be American.

            2. He’s certainly hurting the side he’s purporting to be on. But his persistence and consistency of narrative makes me suspect sincerity.

              Why he posts here and not like Stormfront, I don’t know. But I do try to avoid him as a courtesy to those he would like to pretend are his compatriots.

    2. “But second best would be to focus abusive procedures on people who don’t believe in due process or presumption of innocence.“

      Does not compute. Also not for nothing, what “due process” was Kavanaugh entitled to that he didn’t get?

      1. Leaking unsubstantiated and unsupportable allegations to the media at the 11th hour instead of presenting them early in the process so they can be investigated.

        To do that or to defend doing it is to repudiate a belief in due process or the presumption of innocence.

        1. You know that none of those concepts apply to a confirmation hearing, right?

          1. Don’t you liberals get tired of this argument? You’re like the people who say “Free speech only constrains the government.”

            No. We’re not talking about legal principles. We’re talking about moral ones. The law was structured this way because the people believed in them as moral principles, not the other way around.

            1. Yes. I’m going to take lessons on morality from a person who thinks we should gas everyone he disagrees with.

          2. That’s how we know you don’t believe in them. Because you make up situations where they don’t apply. Someone who believed in them would apply them generally, not once in a while when you think it will work out in your favor.

            1. Due process being situationally based is part of it’s nature; it’s not a sign of double standards.

            2. No, actually, only applying a standard some of the time, and applying the opposite standard at other times, is the very definition of a double standard.

              1. Yeah. And society couldn’t function if we required proof beyond a reasonable doubt in every situation.

                1. There’s a big difference between “proof beyond a reasonable doubt” and “one scintilla of evidence beyond some lying b****’s word”

            3. How do you apply due process and presumption of innocence generally?
              Does that mean people can’t ever reach conclusions on people’s behavior until the conclusion of a criminal trial? If that’s the case, then a lot of posters on these boards are going to have to apologize to a lot of Democrats…

              Generously, you’re asking people to keep an open mind and not have knee jerk reactions. Which is good!

              But more likely, you’re just saying important sounding legal words when people reach conclusions you don’t like in an attempt to accuse them of something more sinister than simply being wrong on the facts.

              1. One way would be to discount or disregard allegations tactically leaked at the 11th hour when those allegations were available to be presented early in the process so they could be investigated.

                You could listen when people act like they care about facts and fairness and stop defending people perpetrating an obvious last minute smear.

                I’m pretty sure you understand what basic fairness in a civilized society is like. You’re making it clear you don’t care.

                Everyone sees this more and more from people like you. Don’t be surprised when everyone else gives up on civilized behavior completely.

                1. There’s a guy on these boards who is talking about how he wants to gas his opponents, but I’m the one who is making it clear I don’t care about fairness.

                  Brett Kavanaugh got far more process and far more support while facing less important personal consequences than the vast majority of people accused of anything. He wasn’t facing death or prison. He wasn’t confronted with armed agents of the state. He wasn’t facing the loss of his livelihood. The consequences for him were the possibility that he might not be on the highest court in the land, and the loss of reputation among people neither you nor Kavanaugh respected in the first place.

                  By contrast, consider the case of Eric Garner. I use this example because it is a good test of whether people actually care about process and fairness. Armed agents of the state heard an accusation that Eric Garner had committed the minor misdemeanor of selling untaxed An offense that would ordinarily result in a summons akin to a traffic ticket. What process did he get? The armed agents of the state decided to use the threat of force to place him under arrest. When he categorically denied the charge and objected to the arrest, they decided to actually use force, that turned out to be deadly. His process was a five minute life or death interaction over untaxed cigarettes.

                  He didn’t get to have a special prosecutor (er sorry, female assistant) question his primary accuser under oath. He didn’t even get to have a defense attorney or to do it himself in court.

                  Kavanaugh got to yell at U.S. Senators and blame the Clintons. Garner didn’t get a chance to blame anyone else.

                  Kavanaugh had the backing of the White House, U.S. Senators, other politicians, a wide swath of conservative media (some of whom went to great lengths to explain why Garner’s death was justifiable), and the public. Garner didn’t get any of that in his five minute process.

                  When after all of this, you complain about due process and presumptions with regard to Kavanaugh, all you are doing is adding another voice to the choir of people defending the already powerful and protected.

                  If Garner got even a hundredth of the process that Kavanaugh received he might be alive today. If powerful people spent more of their time trying to make sure people accused of minor crimes an actual fair process rather than defending the Kavanaughs of the world for the umpteenth time, maybe the world would actually be more fair and civilized.

                  Until that time, you’ll forgive me for not caring about “due process” for Brett Kavanaugh. That’s because he doesn’t need me to care. He doesn’t need you either. But other people do need us to care about how our government treats them, so again, you’ll forgive me for caring about their due process more.

                  1. I agree about Eric Garner.

                    Defending a smear on Kavanaugh won’t bring Garner back, won’t protect anyone from anything, and it’s a clear sign you’re dishonest and remorseless. If you don’t want to tell people you’re dishonest and remorseless, stop defending obvious 11th hour smears.

                    1. You’ll notice that I actually haven’t discussed the substance of any allegation against Kavanaugh or what I believe or disbelieve as to their probability or plausibility. You are inferring that I’m remorseless and dishonest and a bunch of other negative adjectives because I have pointed out that you’re misusing the terms due process and presumption of innocence to lend a legalistic veneer to your general complaint that you believe what happened to Kavanaugh is unfair.

                      But there is one thing I am certain of: Current Justice and former D.C. Circuit Judge Brett Kavanaugh would agree with me far more than you about the nature of due process and the presumption of innocence. He will never ever apply these concepts to a similar set of facts in any opinion. Ever.

                    2. I’m not talking in technical terms. That’s why I clarified/expanded it to “basic fairness in a civilized society” above. Because it’s about a principle, not a very technical procedure for a very specific situation.

                      Circumventing the established process to smear someone at the last minute isn’t something a believer in due process or the presumption of innocence would do. Same for defending such an action.

                      You can stop trying to muddy the waters with this isn’t technically, exactly a situation that matches a specific definition… any time.

                    3. “Circumventing the established process to smear someone at the last minute isn’t something a believer in due process or the presumption of innocence would do.”

                      Why is Justice K entitled to a presumption of innocence when he’s being considered for a promotion? As for due process, I think Mr. Garland has a better argument about being denied due process. Kavanaugh at least GOT a confirmation hearing.

                    4. No one said anyone was entitled to anything.

                      I said the people who perpetrated the smear, and the people who defend the smearing, have shown us they don’t believe in due process or presumption of innocence or anything else that’s in the same zip code as basic fairness in a civilized society.

                    5. “I said the people who perpetrated the smear, and the people who defend the smearing, have shown us they don’t believe in due process or presumption of innocence ”

                      And then I challenged you on two fronts… 1) what process is/was due?, and 2) what presumption of innocence?

                      You didn’t even bother to address one of them, and punted on the other. That makes you 0-2.

        2. Because Grassley was all about a thorough investigation.

          You’re laughable.

          1. I guess we’ll never know what investigation would have happened if the allegations had been presented like honest people would present them.

            The principle you seem to be advocating is that right and wrong don’t matter because the other guys are bad. Anything goes. I hope people deal with you personally according to that standard.

            1. That’s a pathetic excuse.

              We’ll never know what the investigation would have found had it been conducted honestly. It wasn’t. It was a disgraceful sham.

              1. We’ll never know what the investigation would have found if it had been reported honestly instead of waiting until the last minute for a gotcha.

              2. The investigation interviewed everyone who claimed to have witnessed the event. Ramirez wanted the FBI to go around to a bunch of people who had heard, or claimed to have heard, rumors going around at the time — people who weren’t witnesses or even corroborating the account of a specific witness. That’s not the way those investigations work.

        3. “Leaking unsubstantiated and unsupportable allegations to the media at the 11th hour instead of presenting them early in the process so they can be investigated.”

          The media, unlike the FBI, was actually interested in investigating, so that can’t be it.

          1. The Senators, unlike the FBI, was never interesting in having the accusation investigated.

      2. There was no due process for anyone. It was assumed he was guilty in the public eye regardless of the lack of due process for anyone.

        It was a hit job. Imagine allegations made in the public towards you which are unsubstantiated, uncorroborated and cannot be confirmed. How would you handle it when it becomes a national spectacle? What process is there available to anyone when it’s just allegations?

        Frankly I doubt any of us would handle it all that well. As evidenced by how the nation handled it.

        1. 3ducerist, how would I handle it? By rising above it, and demonstrating by my conduct and testimony that the charges against me were implausible. And by insisting that I would step aside if those charges were not investigated sufficiently to put them all to rest.

          But none of that happened. Which is how you get a permanent legitimacy problem on the Supreme Court.

          1. That’s what you guys are wishing for, the “asterisk”. Didn’t happen and it has painted you and yours as the enemy rather than the opposition for a lot of people.

          2. By rising above it, and demonstrating by my conduct and testimony that the charges against me were implausible.

            LOL, so guilty until proven innocent, then?

            Perhaps you would also support the ancient trial by drowning too. After all, if you’re innocent, what do you have to fear?

            Is there ANY part of the Bill of Rights that Lathrop supports?

            1. Kevin, I understand there is nothing in the Bill of Rights which confers a right to sit on the Supreme Court. Nothing either which guarantees that folks who knew you before won’t say what they know. Nothing in there to stop those folks, either.

              That sense of right wing entitlement on behalf of Kavanaugh is actually a pretty good argument for rejecting him, or for impeaching him now. I prefer justices with no entitlements, who get held to standards.

              And by the way, on that basis, I would be okay to see every sitting justice impeached, as I have mentioned previously. All of them have brought the Court into disrepute by overt displays of political partisanship. Kavanaugh is just the most recent, and most egregious. None of the others ever vowed partisan revenge on television, though.

              1. That’s really weak, even by leftists attempting justify obviously evil behavior standards. Maybe you should sit this one out to avoid further embarrassing yourself in front of your fellow travelers?

              2. What “entitlement?” Seriously, WTF are you talking about?

          3. Stephen Lathrop, which would be plausible if it weren’t for corrupt politicians. Neither side wanted the allegations sufficiently investigated. One side because it might actually be proven false, and the other because it might actually be proven true.

            While I appreciate your candor, this was done as a political hit job by one side on purpose as a no win situation for Kavanaugh. If he steps aside they get what they want. If the investigation can’t isn’t fully done they get what they want. It’s only if a full investigation is done and nothing is found do they struggle. But even then their side will always believe that something corrupt happened.

            That’s always the case regardless of which side you’re on. So while we may agree on the right thing to do, this isn’t about honor. It’s all political.

            1. 3ducerist, you have summed it up nicely. Accepting everything you say about political corruption, I suggest that on the strength of your own description, it ought to be clear to you what an innocent Kavanaugh should have done. He ought to have announced that he wants no part of a tainted confirmation to the Court. He should have told Senators to investigate him until the cows come home, and if they turn nothing up, to confirm him then. Republicans in the Senate would have had no choice but to go along with that. Kavanaugh, the Court, and the nation would not now be in the pickle they are in.

              1. Again you’re back to an assumption that only innocent people do what you think they should do. This isn’t the ‘if you’re innocent you won’t object to a search there for if you object to a search you’re guilty’.

            2. 3ducerist, from your link:

              The FBI, however, is being severely restricted by the White House in who investigators are authorized to interview, NBC News reported on Saturday.

              By that time, the Kavanaugh nomination was fat in the fire, and it could not have been more clear that a truncated investigation would put a long-lasting stain on Supreme Court legitimacy. And of course the alternative, to replace Kavanaugh with another equally-loyal nominee, would have been political child’s play.

              But Republicans elected to go with truncation, go with Kavanaugh, and worry about the stain later. It raises a question. What about Kavanaugh was so uniquely desirable that Republicans were willing to accept such easily avoidable costs? In the heat of the moment, it was hard to focus on that question—it just looked like both sides had their blood up about winning the contest. In hindsight, it is very hard to suppose that professional politicians had not made a careful calculation that Kavanaugh, personally and particularly, was worth paying a notable extra cost. I suggest finding an explanation for why they did that might be a better focus of investigation than more penis stuff.

              1. As soon as we find out exactly why Feinstein decided to hold the information until the last minute. We may as well go in order here. Since we already know from Ford’s lawyer that part of the reason for coming forward was Roe v Wade, next would be why Feinstein held onto it. Then we can move on to why the Republicans chose to die on the hill.

                All the while, Democrats have now decided they’re going to die on a hill by offering impeachment over something I have serious doubts they’re going to get. They effectively have to prove he knew. Good luck with that.

        2. ” It was assumed he was guilty in the public eye”

          For whom are you speaking, here?

          1. James, in this case for those who were interested in hearing it out and awaiting more information.

    3. “The Justice Department can get them on some other random crime they may have committed.”

      Yep. That’s the way I want justice dispensed.

      1. The 4th and other things are designed to stop the Tyrant King from using the power of investigation against enemies, even if there be actual crime (and with 60,000+ laws, almost every powerful and rich person can have something found.)

        You have to have a warrant so you can’t just filch through someone’s papers. And it can’t be a general warrant for that same reason.

        “This guy is uppity — check if there’s any old warrants or issues we can hassle him over!”

        Ummmmm, no.

        1. Take your sarcasm detector down to the shop. It’s broken.

      2. That’s the Mueller standard.

  6. The NYT story contains new supporting evidence of one of the incidents that was at the center of the controversy.

    Between the NYT and Mollie Hemingway of the Federalist…well…

    The NYT also goes into an entirely new incident that is similar but did not come up in the hearings.

    But the big thing to me is that the NYT more or less proves what was pretty clear at the time: that the FBI investigation was nominal and structured so as to generate no relevant information about the questions at hand. Kavanaugh wasn’t cleared of anything.

    No reason the House shouldn’t take another look, either as a formal impeachment inquiry (with all the additional political risk that implies) or just as part of their general investigatory duties.

    1. I would say that it does prove what was clear at the time: As long as allegations are consequence free, they are easy to obtain.

      1. Nice way to ignore literally any testimony about literally anything.

        I don’t think Ford, what with all the death threats and having to move, could be classified as being free of consequence.

        1. Don’t forget the hundreds of thousands of dollars Ford managed to raise for herself.

          1. Dollars raised on account of the said death threats and moving.

            Do you think she’s living it up right now? Do you think she’s glad about what happened?

            1. Yes, I do. She’s a folk her to the leftist traitors of America.

            2. “Do you think she’s glad about what happened?”

              No, because her “stunt” didn’t result in Kav getting rejected. If it did, she’d be very happy. Her own family doesn’t believe her.

              But $800,000 or so dollars is a nice side benefit

              1. “Her own family doesn’t believe her. ”

                Nor her best friend.

                But Sarcasto does, that is all that is important to him.

                1. As I said in my post, I don’t believe anyone; I want an investigation.
                  Whether with impeachment as the push or not.
                  And not the rubber-stamp BS the FBI did.

                  But this is getting into Cosby-esque numbers of people corroborating a pattern of behavior.

                  Not even a pattern of behavior that necessarily keeps one off the bench – I got up to some shenanigans in college as well. But lying about it to Congress, especially like he did? If he did lie, that’s not cool

                  1. Yeah, except that Cosby was shown to be doing this for many decades and up until the present. This is consistent with the idea that sex offenders cannot help themselves. With Kavanaugh, we’re to believe that he was a pervert in college who let his friends (this is so moronic on its face) shove his schlong into a drunk girl’s hand, a year or two after trying to rape a girl, but has managed to behave himself for the past 30 years? Give me a f***** break.

                    1. Was shown. But the same sort of accretion of testimony and corroboration as we have here.

                      But even if proven, I’d not be against him for moral turpitude – I don’t need to even consider the fact pattern. I’d be against him for lying about it.

                    2. Not even close. The Cosby testimony was specific in the facts. None of the “allegations” against Kavanaugh are.

                    3. So you’ve not actually been reading the latest.

                      Unsurprising.

                  2. You had an investigation. Multiple investigations. By multiple different organizations and people. You just want to investigate until you get the answer you want.

                    1. I just want an investigation that wasn’t a sham.

                      Kavanaugh hasn’t proven to be nearly as crazy as I thought he would; and Trump is still President with a GOP Senate.

                      This isn’t about an answer I want.

                    2. No. There was no serious investigation. You are either lying or living in a right-wing fantasy bubble.

                    3. “I just want an investigation that wasn’t a sham.”

                      You seriously want an investigation every time some rando makes an uncorroborated allegation? No, I think you just wanted to delay the confirmation. Ford’s lawyer let slip that she was motivated by a desire to put an asterisk next to any decision overturning Roe. And her best friend came out and said that there was no party matching Ford’s description.

                  3. Sarcastro : As I said in my post, I don’t believe anyone; I want an investigation.

                    So to be clear you’re just as up for an investigation of Ford for lying to Congress, as you are for an investigation of Kavanaugh for the same offense ?

                    1. “So to be clear you’re just as up for an investigation of Ford for lying to Congress”

                      If it turns out she wasn’t lying to Congress, are you prepared to accept that? Because if not, what would be the point of investigating that point?

                    2. You could never prove that she was lying to Congress because the Democrats’ lawyers made sure she presented a non-falsifiable account. I sure would love to know who picked her up after the alleged sexual assault. I find it suspicious that, despite all of the things she remembers about the alleged incident, she does not remember this critical detail, the one detail that would either corroborate her story or be strong evidence that she was lying.

    2. “Between the NYT and Mollie Hemingway of the Federalist…well…”

      Well,what? Why do you think the NYT doesn’t bother to mention that the alleged victim doesn’t recall the incident? Do you think that this speaks to the NYT’s credibility?

      1. Hemingway does opinion. Then she wrote a book.

        This is reporting. Reporting about additional corroboration.

        Do you straight-up think the NYT is deceiving the public here, or perhaps that Hemingway’s book wasn’t consulted?

        1. Yes, I believe the NYT is deceiving the public. To publish the “accusation” without also reporting that the supposed victim has no memory of the incident is journalistic mispractice at best.

          1. So you’re giving 100% credence to one source (the opinion writer), but not the other (the journalistic institution with safeguards).

            Your standards are not consistent.

            1. I said nothing about the Federalist. I did say the NYT is deceiving the public by publishing the accusation without the fact that the victim doesn’t remember any such action ever happened. Which is true, and journalistic mispractice.

              1. Oh, I’m sorry. The NYT suddenly made a “Revision” noting that fact. Odd how that happens after the “opinion writer” makes such a fact public knowledge.

                1. Yeah, it’s still a lie and conspiracy, no matter what’s changed. Well done.

                  1. So….remind me who I should give credence to? Who are you going to give it to? The organization that time and time again has to make corrections?

                    1. And does make corrections. The NYT is a journalistic organization with layers, protocols, and safeguards. The Federalist is not.

                      You notice the NYT’s corrections because it makes them.

                    2. “And does make corrections.”

                      When they get caught, sure. Another outlier, eh?

                    3. You’re going to argue the NYT only makes corrections when they get caught?

                2. So you’re giving 100% credence to one source (the opinion writer), but not the other (the journalistic institution with safeguards).

                  Duuuuuuuuuuuude. Goalpost shift time. They goofed, and didn’t knowingly and deliberately issue this article because of politics to rehash things.

                  1. So it wasn’t some bad-faith coverup?

                    1. “So it wasn’t some bad-faith coverup?”

                      No, I’m sure it was a totally innocent fuck-up that they forgot to mention that the “victim” has no recollection of the incident.

                    2. Appeal to incredulity won’t get you anywhere except your own self-validation.

          2. “To publish the “accusation” without also reporting that the supposed victim has no memory of the incident is journalistic mispractice at best.”

            I also have no memory of that event, and you failed to disclose this. Ergo, you’re lying.

            1. Somewhere, I seem to spy a bridge.

        2. “This is reporting. Reporting about additional corroboration.”

          It’s either opinion or news analysis, depending on which version the NYT is going with at the moment. (It was NYT opinion that tweeted the “having a penis shoved in your face seems like fun” tweet). And it appears that they have added an editor’s note confirming Hemingway’s claim.

      2. Yet Ramirez, the victim of the incident EV ignores, does remember the event.

        1. “Yet Ramirez, the victim of the incident EV ignores, does remember the event.”

          She wasn’t sure that she remembered it. She called several people to ask them before deciding that she remembered it.

          1. And maybe if the FBI had been allowed to check with other possible witnesses we would have better information.

            But it was Kavanaugh’s supporters who stopped that. Simple fact. Why do you suppose they did that?

            1. “Why do you suppose they did that?”

              They did it because they quite sensibly didn’t want to delay the confirmation for every rando with a bullshit allegation, that’s why.

              1. They didn’t want to delay the confirmation by uncovering any inconvenient facts, either.

      3. TwelveInch, I think the NYT’s credibility holds up fine. The time to decide the witness does not recall the incident is not before the incident has been officially investigated. Before that happens, a report that the witness does not recall is speculation. Fairly obviously, an investigation which corroborated the incident with accounts from other bystanders might have induced testimony from a victim otherwise reluctant to subject herself to the fate Ford suffered because she lacked corroboration.

        1. “Fairly obviously, an investigation which corroborated the incident with accounts from other bystanders might have induced testimony from a victim otherwise reluctant to subject herself to the fate Ford suffered because she lacked corroboration.”

          Ford came forward without corroboration. She also said that her best friend was at the party. The best friend doesn’t believe Ford, and said Ford’s friends leaned pretty hard on her to falsely provide said corroboration.

          1. And Ramirez certainly checked before coming forward:

            “Ms. Ramirez herself contacted former Yale classmates asking if they recalled the incident and told some of them that she could not be certain Mr. Kavanaugh was the one who exposed himself.”

          2. Ford had her therapist at the time.

            1. IIRC Ford’s therapist refused to release information from her files.

            2. “Ford had her therapist at the time.”

              There’s very little evidence of any conversation with any therapist. Ford claims to have therepist’s notes, but she has not released them, and has shown them to a single journalist.

          3. TwelveInch, assuming “her,” in your last sentence refers to the best friend, are you saying that Ford’s friends explicitly “leaned pretty hard,” to get her to falsify, and said so? Or are you saying the leaning was on behalf of an account which the best friend remembered otherwise, or maybe did not remember? I am trying to figure out if it was the best friend, or you, who is saying, “falsify.”

            1. “I am trying to figure out if it was the best friend, or you, who is saying, “falsify.””

              The best friend has said that they tried to get her to say that she had been in similar situations with Ford that summer. She has said that she had not been in a similar situation that summer.

    3. “No reason the House shouldn’t take another look, either as a formal impeachment inquiry…”

      At what? The claim is that someone else pushed his penis into a woman’s hand. You want you impeach him for being a sexual assault victim?

      1. The claim is that he lied in his confirmation.

        1. Yes, of course that’s the claim: Make an allegation you can’t prove against somebody, demand they deny it under oath, and then prosecute them for perjury for the denial. Doesn’t a successful prosecution require being able to prove the allegation?

          1. It’s quite possible to lie about something without knowing anything about it.

            1. That’s not a lie though. If he had no knowledge of it then when asked his answer would be no when asked. That’s generally how people speak when answering questions like that. It doesn’t mean that if someone else remembers or sees something he didn’t, that he committed perjury or lied. It means he didn’t remember or doesn’t know.

              If you’re arguing otherwise, you’re pulling semantic shenanigans and playing games with fallacious arguments.

    4. It does no such thing. It only showed that the FBI didn’t view this claim as worth investigating. Nothing else can be said. Given how marginal it is. Let’s go over the facts a 3rd party said he saw Kavanaugh get wild at a party. Nothing is provided about whether this is normal for these parties or even whether the woman who was “assaulted” even took offense. She certainly didn’t remember this incident (if it even happened) when the new reporters came calling.

      Any police officer investigating it would throw this out immediately as gossip. Something that would never stick even if it was provably true, which it isn’t.

      1. It only showed that the FBI didn’t view this claim as worth investigating.

        100% false. The FBI was specifically barred from investigating Ramirez’ claim.

    5. As federal prosecutor Ron Howen once declared, the finding of a court is never guilt or innocence: it is guilt proven or guilt not proven. There is no “innocent unless proven guilty”; there is “not proven guilty or proven guilty”. From the prosecution point of view.

  7. Any comment on the circumstances that inclined Judge Kozinski to quit? In a context involving first-hand knowledge?

    Didn’t think so.

    #Courage

    1. Love these stories from yesteryear Gramps.

      1. Justice Kavanaugh clerked for Judge Kozinski.

        Prof. Volokh clerked for Judge Kozinski.

        Justice Kavanaugh, if I recall correctly, hired Judge Kozinski’s son.

        Judge Kozinski quit rather than answer allegations of impropriety.

        Justice Kavanaugh and Prof. Volokh have departed from customary loquaciousness and pugnaciousness in the context of Judge Kozinski.

        This is what conservative courage looks like, apparently.

        1. Versus liberal “courage” exercised by Michael Sam, which basically means announcing to the world that you practice sodomy.

          1. Means he has more courage than you.

            Shocking.

  8. Anyone who can’t remember a sexual misdeed done by someone famous, dead or alive, must be lying…or laying…same thing in this case.

  9. ” classmate, Max Stier, saw Mr. Kavanaugh with his pants down at a different drunken dorm party, where friends pushed his penis into the hand of a female student. ”

    *Friends* pushed his penis?

    Did Kavanaugh consent to this penis-pushing? Because if not, it sounds like he was the victim of sexual assault. Who were these friends? Justice must be served.

    1. Because it’s perfectly normal to take your pants off at a party.

      1. Is it okay to sexually assault a woman because she might not be fully covered or has her pants down?

        1. Could you imagine if the roles were reversed?

          “So-and-so remembers that at a frat party, an there intoxicated woman with her skirt up, and friends pushed her vagina onto Kavanaugh’s hand…

          Bernard11: “That bitch raped Kavanaugh!”

          1. Actually it would be ‘those ‘friends’ who pushed her onto someone else assisted in her sexual assault.

            But I love how you like to make it an incorrect comparison for your own sport.

            1. Well, yes, if the allegations are true, then the friends are guilty. But can you imagine hearing that people pushed a woman’s vagina into a man’s hand, and coming to the conclusion that the woman assaulted the man?

      2. Sounds like you’re going to the wrong parties. Or, for some reason, aren’t being invited to those parties.

        1. Could be.

          Maybe I need new friends.

  10. The President’s knowledge of libel law is exceeded only by his knowledge of how tariffs operate.

    1. He asks the staff if they can do anything about whatever it is that has angered him that day. They then proceed to tell him whatever it is he wants to hear, and then ignore it until something else pisses him off.

  11. “It’s also odd, as Hemingway noted, that the Times story wouldn’t mention the woman’s denying any memory of the supposed incident…”

    I don’t think it’s odd. Remember, this is an organization that had to stop running editorial cartoons because it couldn’t prevent itself from publishing anti-Semitic propaganda.

    1. What kind of dumb collateral attack is that? Shows you’ve not got a lot if you’re trying to drag editorial cartoons into a discussion of reporting.

      1. His point is rather that instead of reporting, editorials are being presented as journalism.

        That’s why an omission of important context (the woman claims she wasn’t involved in any such event) is expected – the goal isn’t to inform, but persuade.

        1. A bad editorial cartoon is not proof editorial is screwing with reporting.

          Unlike, say the memos unearthed at FOX news showing that.

          That context being omitted isn’t proof of that either.

          1. “A” bad editorial cartoon wouldn’t be, anybody can make the occasional mistake. A whole series of the, OTOH?

        2. “the woman claims she wasn’t involved in any such event”

          That’s a rather different claim from “I don’t remember”.

        3. . . . the goal isn’t to inform, but persuade.

          There is another goal, too. To not misinform. The question of whether the alleged victim remembers the incident, or might later remember it with the help of information turned up in an investigation, is a sensitive and problematic question for a journalist.

          Either way you present it, one side hates the answer, the other side loves the answer, and nobody is really any the wiser, because no investigation has been done. So reporting that piece involves presuming something not yet knowable, and maybe getting it consequentially wrong.

          Not reporting that piece is a way to dodge the problem, while doing no harm, and awaiting more information. In short, by not reporting, you don’t risk publishing consequential misinformation.

          1. IIUC you are saying that it is normal practice that the NYT not reporting on their hiring of anti-Semites and racists is still waiting on more information?

    2. TwelveInch, as for the EV quote, he may not have got it quite right. In the NYT I read that it was friends of the woman who said she had no memory of the incident. The woman herself was not interviewed. Exactly what the friends were asked, and how they replied, was not quoted.

      1. And good editorial/journalism process would note that, and that they’re making attempts to contact the woman with or without success to get a direct statement from her.

  12. What we need is a separate independent counsel for each allegation, plus an independent counsel to investigate the other independent counsels when they don’t produce indictments, and so on ad infinitum until the heat-death of the universe.

  13. Perhaps the witness simply overheard Kavanaugh say he supported a Presidential ticket with Anthony Wiener and Eric Holder.

    “Wiener/Holder.”

    1. There a well known bit of TV commentary from an England v West Indies cricket match long long ago :

      “The bowler’s Holding, the batsman’s Willey.”

      1. Reporting on a baseball game; one can say there are two balls on the batter but cannot say the batter got hit in the balls!

  14. If only the Democrats hadn’t placed severe restrictions on the FBI investigation of the allegations against Kavanaugh we might have more to go on here.

    1. You people are unbelievable. The FBI did the investigation they could, which was not much, because there was literally nothing to investigate. She didn’t remember the time, date, place, or anything else about the so-called “rape.” She couldn’t say who else was there, or even what town the party took place in. What was the FBI supposed to “investigate?”

      1. Oh bullshit.

        Talk about unbelievable.

        The FBI investigation was severely restricted, both as to scope and time, by Grassley. That’s a fact, asshole. They were prevented from investigating Ramirez’ allegations.

        The limitations were there precisely because Grassley, no doubt slavishly following orders, didn’t want a full investigation.

        These are facts. You can deny them, as your favorite psychotic would, but that doesn’t change matters.

        1. Well if perhaps Feinstein hadn’t waited until the last minute to release the information she had well in advance, more could have been done.

          Both sides play political games, not just one side.

          1. The FBI didn’t even bother to follow up on any of those featured in the NYT story, all of whom contacted the FBI.

            Don’t pretend this was in any way a good-faith explanation.

            1. How can the FBI investigate every nonsense story that they get? We only see what gets published. They get hundreds or thousands of false tips and leads every day. Even if this was provably true, a third-party report based on actions at a wild party is not prosecutable. There is no evidence that it was even unwanted attention.

              If the girl herself had reported it, that would be a different story. However, this isn’t worth following up.

              1. These were all people at school at the right time, some with good reputations as serious people. It’s easy to do that kind of triage. If you’re not running a sham.

              2. There were two different incidents discussed in the book.

                In one, the case of Deborah Ramirez, she provided the FBI with a list of twenty-five people who might have corroborated her story. The FBI talked to none of them.

                Stop the idiotic trolling.

                1. Do you have proof of that? Let’s see it.

                  1. Ask the FBI.

                    Remember, they were giben only a few days to investigate, and specifically restricted in what was allowed.

                    Several people tried to contact the FBI with information and got no response. Just read the damn report.

                    1. So you had nothing. I’m shocked.

                2. Are you bringing up the Ramirez story again? Was that the one where she had no idea where or when it was, and then she wasn’t certain it was Kavanaugh at all. Or was that the one where there he lead a group widely known for drugging and taking turns at women. A group so infamous that no one ever reported anything or could recall anything of the sort?

                  There was a reason Ramirez’s testimony didn’t get investigated. She recanted the whole thing!

                  I guess the scum of Germany were right. Tell a lie long enough and people will believe it no matter how absurd it is.

                  1. Ramirez recanted nothing. She spoke to the FBI, who found her credible, but they were prevented from following up on a list of possible witnesses.

                    So fuck off with these lies.

                    1. “She spoke to the FBI, who found her credible, but they were prevented from following up on a list of possible witnesses.”

                      C’mon man, give it to us. This is Pulitzer stuff. Don’t be shy. Expose those bastards. Tell us the whole story: who shut down the FBI, what all those myriad witnesses said, who they were and how they were silenced. Have your informant release the tapes you’ve heard about Wray shutting this down. This is bigger than Russia collusion.

            2. THE FBI didnt investigate the alledged incident because there was nothing reported that was deemed credible.

              1. Did you just make that up? Because that’s definitely not true.

                1. Yup. There seems to be some sort of massive denial about all this going on on the right.

                  They emulate their god, Trump, in their attitude towards truth.

          2. 3ducerist, what made it the last minute? Only the Republicans’ determination to rush the investigation to a conclusion, right?

            1. No, what made it last minute is that Feinstein rejected using the allegation, (Presumably because it WAS sketchy.) until it was obvious that all else had failed and they were down to just throwing random garbage at the wall and hoping it would stick.

            2. Feinstein was the one who had the information for quite a while. So ask her what made it last minute.

          3. Both sides play political games, not just one side.

            Okay. But if both sides are playing a political game, and your side is making unforced errors, you are going to lose the game. Rushing the Kavanaugh investigation to a conclusion was an unforced error. Now Republicans find themselves on the defensive, and may lose, but for sure the nation is losing.

            1. Nope. Kavanaugh will be there for the next 30 years, doing a good job. Desperately trying to re-kindle the Kavanaugh debacle is probably more about Dem panic over RBG’s physical condition than anything else.

              1. Yes, ‘the Dems’ got worried and so called in the NYT and asked them to run this in order to…get RBG to hang on longer?

                You’re not making a lot of sense here.

                1. Y’all are running around like chickens with their heads cut off. You’re usually not quite that bad so something must be causing you to up your panic level. Maybe it’s knowing that the Dem field is a clown car and that Trump is likely to get re-elected or it’s just a sense that he will get through 2020 and RBG won’t.

                  Don’t get wrong here, you almost always go for half-baked, uncorroborated allegations if it suits your politics. It’s just that this is so stupid that you and bernard, who only get to the first half of the first page of anything, should know to keep your heads down.

                  1. Thanks for the psychoanalysis. Methinks it says more about you than me.

            2. Democrats didn’t want a full investigation because it might clear him. Republicans didn’t want a full investigation because it might prove something did happen.

              It wasn’t an unforced error. It was what they both wanted, despite having different reasons.

      2. “The FBI did the investigation they could, which was not much, because there was literally nothing to investigate. ”

        Hence the well-known saying, “it’s super-easy to prove a negative.”

        1. Okay, I’ll bite. Please describe what the FBI could have done to investigate these claims that they didn’t do.

          1. Interview Deborah Ramirez and the people she claimed witnessed the incident at Yale and the people claiming that they witnessed it?

            1. That seems straightforward enough.

              Awaying the next trollish defense from Kavanaugh’s fans.

            2. I’m sorry, when she said she couldn’t recall if it was even Kavanaugh, that kind of eliminated all probably cause. Multiple news agencies had already interviewed everyone and came up negative.

              The FBI repeating the questions was a waste of time, and you know it.

  15. But Trump said Kavanaugh should sue for LIABLE.

    1. Frankly, I’d like an investigation to determine the oranges of this story.

    2. And who doesn’t hate autocorrect?

      1. Pres. Trump’s illiteracy does not derive from autocorrect. You should know this.

        1. The oranges thing could also be from dyslexia, which would also explain why Trump refuses to read. Other consequences follow.

  16. Professor Volokh,

    Surely you’re not suggesting that lawyers never threaten to file, and never actually file, lawsuits lacking legal merit? They do so all the time. Surely it ‘s a legal role.

    The idea that government layers act out of some sort of abstract concept of honor or ethics that restrains what they can do based on notions of what they should do is a legal role, but it’s not the only possible legal role. Another way to do legal work is to do whatever necessary to get ones boss’ way short of the boss going to jail. And that seems to be the sort of legal role Trump generally has in mind.

    1. The DoJ has a mission, and it’s not to be the President’s sleazy fixer.

      1. Previous DoJ’s have apparently been unaware of that.

        1. I heard the AG is the president’s “wingman”.

          Or is that only for Dem presidents?

        2. What Trump has been asking the DoJ to do is well beyond whatever your tin-foil conspiracies about Obama or Clinton are.

          Regardless, this is clearly not what the DoJ has ever done, in any previous administration: Another way to do legal work is to do whatever necessary to get ones boss’ way short of the boss going to jail. And that seems to be the sort of legal role Trump generally has in mind.

          1. “What Trump has been asking the DoJ to do is well beyond whatever your tin-foil conspiracies about Obama or Clinton are. ”

            I wouldn’t take that bet.

    2. And that seems to be the sort of legal role Trump generally has in mind.

      Yeah. But they are not his lawyers.

    3. ” Another way to do legal work is to do whatever necessary to get ones boss’ way short of the boss going to jail.”

      Mr. Trump is welcome to pay for as many lawyers as he thinks he needs to cover up his dirty work. Surely Mr. Cohen can give plenty of referrals, since he’s currently otherwise occupied. But the lawyers at the Justice Department don’t work for Mr. Trump. They work for the Justice Department. The pay probably isn’t as good, but it has better long-term prospects.

      1. The lawyets most definitely work for the President.

        1. Perhaps on your planet they do.

  17. Anyone believing this latest accusation just isn’t very bright.

    Has this site covered the fact Ford essentially lied when she said she didn’t come forward because of politics? Her lawyer contradicts her and says Roe vs Wade was part of the reason.

  18. I’m skeptical about the latest allegation about Brett Kavanaugh’s supposed misdeeds in college, published in the New York Times

    Of course you are.

    1. Perhaps Judge Kozinski confided with respect to Justice Kavanaugh’s character and conduct?

  19. For those of you who need CLE credits, here is the procedure for reviving the Kavanaugh investigation:

    https://www.youtube.com/watch?v=fplDqAAuP9s

  20. Max Stier’s allegation, like most [if not all] such allegations, is that human memory does not work like that.

    Maybe such an incident happened. But there is no reason for Stier to know who the man was or to remember it 30 years later.

    Kav was not a Circuit Judge and S/C nominee then. He was just a student. Stier was not involved, he just allegedly saw some unknown student allegedly do something. At a noisy party after [i assume] a drink or 3 himself.

    Did the friends repeatedly shout out “Brett Kavanugh”?

    Seeing Circuit Judge Brett Kavanugh do that at a party two years ago is one thing, you probably would recall that. Seeing some drunken kid do it 30 years ago is something different.

    1. Could be, Bob.

      Maybe if the FBI interviewed him they could determine just how credible he is.

        1. Because the truth matters, you postmodernist!

  21. “But regardless of this, I just can’t see how “the Justice Department should come to [Justice Kavanaugh’s] rescue” on this matter, as President Trump suggests:”

    The FBI could interview the people making the allegations. And if there’s evidence that the claims aren’t truthful, charge them with obstruction.

    1. Two-edged sword there, TIP.

      Grassley understood that, which is why he prevented it from happening.

  22. Donald J. Trump
    @realDonaldTrump
    Brett Kavanaugh should start suing people for libel, or the Justice Department should come to his rescue. The lies being told about him are unbelievable. False Accusations without recrimination. When does it stop? They are trying to influence his opinions. Can’t let that happen!
    9:47 AM – Sep 15, 2019

    THE assumption is that Trump was tweeting about DoJ responding to NYT but he actually said “people”.

    There is the NYT tweet posted 5:13 pm Sat. 14 Sep 2019.
    (T) New York Times Opinion
    @nytopinion
    Having a penis thrust in your face at a drunken dorm party may seem like harmless fun. But when Brett Kavanaugh did it to her, Deborah Ramirez says, it confirmed that she didn’t belong at Yale in the first place.
    Brett Kavanaugh Fit in with the Privileged Kids. She Did Not.
    nytimes.com

    Well, he can’t be responding to these tweets.
    First they are time stamped after the NYT tweet.
    And they are by congresscritters who by the blessing of Congressional immunity can lie with impunity, like lawyers or advocacy journalists. But this is part of the twitter storm.

    Bernie Sanders
    @BernieSanders
    The revelations today confirm what we already knew: During his hearing, Kavanaugh faced credible accusations and likely lied to Congress. I support any appropriate constitutional mechanism to hold him accountable.
    3:22 PM – Sep 15, 2019

    Elizabeth Warren
    @ewarren
    Last year the Kavanaugh nomination was rammed through the Senate without a thorough examination of the allegations against him. Confirmation is not exoneration, and these newest revelations are disturbing. Like the man who appointed him, Kavanaugh should be impeached.
    1:42 PM – Sep 15, 2019

    Kamala Harris
    @KamalaHarris
    I sat through those hearings. Brett Kavanaugh lied to the U.S. Senate and most importantly to the American people. He was put on the Court through a sham process and his place on the Court is an insult to the pursuit of truth and justice.
    He must be impeached.
    11:03 AM – Sep 15, 2019

    1. All the same it’s not that easy to see how “the Justice Department [c]ould come to his rescue.”

      In principle it could investigate Ms Ford for lying to Congress but when was the last time that sort of thing happened ? Many many whoppers have told to Congressional Committees over the years, in the tiny gaps between Committee members telling their own whoppers, and it doesn’t end in prosecution.

      If Trump wants the DoJ to abolish Deferred Action for Mendacious Witnesses, I predict it will not end well.

  23. I wonder, as this story fully develops in the mainstream press, and elsewhere, if any of the initial commenters here who expressed strong views anti-Kavanaugh will change their views. I am afraid it’s not likely.

    It turns out there’s a lot of finger-pointing going on at the Times, as the authors blame the editors for leaving out the critical detail that the supposedly assaulted woman denies any memory of the incident. And, that the witness was a Clinton-representing lawyer, who opposed Kavanaugh on that case.

    Judge Nap feels there’s a case for libel, due to “actual malice” – the paper published information it knew to be false, or showed a “reckless disregard for the truth.” I agree.

    Regarding POTUS’ comment about the DOJ, I thought he was referring to cases of individuals who bore false witness during the confirmation hearings: Avinati, Ramirez – maybe even Ford. It now is more apparent she was lying, according to the book, as she wanted to put an aserisk on Kavanaugh – it wasn’t about a sexual assault.

    The NY Times has soiled itself, again. But the true believers eat it up – again and again.

    1. Birthers, Confederate flag fondlers, and superstitious slack-jaws are always the most qualified people to opine on true believers.

    2. It turns out there’s a lot of finger-pointing going on at the Times, as the authors blame the editors for leaving out the critical detail that the supposedly assaulted woman denies any memory of the incident.

      That does not seem to be what I read in the NYT. Maybe there is more than one version, and I did not see the most recent? The version I read said the victim was not interviewed. It said also that unnamed friends of the victim said she did not have any memory of the alleged incident. It does not say what questions the unnamed persons were asked, nor quote their replies.

  24. I wonder how many have so soon forgotten that this is not a ‘new’ allegation. It’s an old one.

    https://www.cnbc.com/2018/09/29/fbi-to-interview-brett-kavanaugh-accuser-deborah-ramirez-.html

  25. I put this in the wrong spot. I meant for it to go here, so once again:

    3ducerist, from your link:

    The FBI, however, is being severely restricted by the White House in who investigators are authorized to interview, NBC News reported on Saturday.

    By that time, the Kavanaugh nomination was fat in the fire, and it could not have been more clear that a truncated investigation would put a long-lasting stain on Supreme Court legitimacy. And of course the alternative, to replace Kavanaugh with another equally-loyal nominee, would have been political child’s play.

    But Republicans elected to go with truncation, go with Kavanaugh, and worry about the stain later. It raises a question. What about Kavanaugh was so uniquely desirable that Republicans were willing to accept such easily avoidable costs? In the heat of the moment, it was hard to focus on that question—it just looked like both sides had their blood up about winning the contest.

    In hindsight, it is very hard to suppose that professional politicians had not made a careful calculation that Kavanaugh, personally and particularly, was worth paying a notable extra cost. I suggest finding an explanation for why they did that might be a better focus of investigation than more penis stuff.

    1. I understand that, but as this was A) not new B) already at least partially investigated and C) not remotely at the point of being worthy of impeachment it’s odd that there’s so much renewed furor over what was already ‘furored’ if you will.

      The Democrats have decided that impeachment of Trump and Kavanaugh are the hill they’re going to die on. Just as the Republicans did on getting Kavanaugh in.

      It very well may backfire on them. Their panel of potentials isn’t very strong this go round (not that Trump is a bag of potential either)

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