The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

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.


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.