When Senator John Cornyn stated that the US Senate’s Judiciary Committee proceedings deliberating on the appointment of Judge Brett Kavanaugh to the Supreme Court of the US, had become a circus, repeatedly quoting words used to describe Senator McCarthy and his 1950s inquisition as being cruel, reckless and without decency, I could not but think that he had a point.
Justice is built on age-old principles like due process, objectivity, and innocent until proven guilty. Whenever these are disregarded civilisation scrapes the bottom of the barrel.
I should state from the outset that my leanings or sympathies have never lain with the US Republican faction, or judges whose decisions are weighted in favour of big business. However, it would be a great perversion were the judge to be rejected for the wrong reasons and subjected to a show trial.
After 36 years of silence, psychologist Christine Blasey Ford recently alleged a case of sexual assault in 1982 when Judge Kavanaugh was 17 and in high school. She has not claimed sexual harassment, which is conduct unbecoming, but assault, a criminal offence. Strangely and sadly she did not do the obvious thing in July and approach lawyers to advise her on the way forward, and file a police report over the 36-year-old incident. Instead she went to her congresswoman and senior Democrat member of the Judiciary Committee, with information she insisted should remain confidential. She eventually engaged a legal office recommended by the senator.
From then on the whole case unfolds like a television soap opera.
Her letter, which was known only to her lawyers, the congresswoman and the senator, was suddenly leaked to the media after all other efforts to shoot down the judge’s nomination failed. This is an extremely serious incident, but has been lost in translation in the said opera. The FBI should investigate the leak, and presumably some head would roll. But thus far it has been ignored.
Considering Ford’s insistence on confidentiality it would appear that she had no intention of filing a police report against the judge.
The problem is that in law you cannot claim that someone carried out a crime against you and insist on keeping it confidential. It is a very serious allegation that needs to be substantiated for the obvious reason that it would seriously impact on the alleged offender’s life. Should the allegation be false, this would also constitute a very serious criminal offence.
The leak and the following hearing eventually led to Ford finally agreeing that the FBI should investigate the case. The FBI could not investigate an alleged crime against a person without that person filing a complaint before it.
Ford has alleged that she was forcefully pushed into a bedroom from the hall upstairs next to a bathroom, then pushed onto the bed as Kavanaugh lay on top of her, holding her down. She managed to slip away when his friend Mark Judge jumped on the bed, causing Kavanaugh to fall off her.
Any allegation of a criminal offence, from petty theft to murder, requires substantiation. In her testimony Ford cited three persons present in the house where the incident allegedly took place, including Leland Keyser, a long-time friend of hers. However all three persons have countered her testimony, including her friend Keyser, by sworn statements under penalty of felony.
In layman’s language, if they are ever proven to be false, they would get jail time.
So the hearing is faced with two conflicting versions, that of Ford and that of Kavanaugh, who denies ever being at such a gathering with her, let alone having assaulted her in any way. His version is corroborated by all the three persons mentioned by Ford. One of the three, Mark Judge, was implicated in the alleged offence, but the other two were not.
We have an alleged crime that took place on an uncertain date and place. This would make it impossible for any prosecutor to give the go ahead for any prosecution
The committee’s task in hearing her was to determine the credibility or otherwise of the witness before it. However rather than taking an objective approach in search of the truth, many committee members, beginning with the senior Democrat, expressed their fullest support and commiserations for Ford for all that she had been through in 1982. In other words the persons who, as part of a quasi-judicial process, were mandated to determine the credibility of a witness, were, even before she began to testify, a priori stating from the outset that the witness was totally credible.
Ford had first alleged that the incident took place sometime in the mid-1980s. Then she changed this to the summer of 1982. She could not remember any pertinent details other than those listed above. She did not know what house she was in, or who owned it. She did not know how she got there, or how she got home after she ran out of the house, which was around five miles away, at a time when she did not drive.
So we have an alleged crime that took place on an uncertain date and place. This would make it impossible for any prosecutor to give the go ahead for any prosecution. It is also impossible for the FBI to examine the scene of the alleged crime, to see if its layout matched the details given by Ford, and whether there was a bathroom on the ground floor around the living room where the alleged gathering of friends took place. The absence of a bathroom for visiting guests on the ground floor is highly unusual and certainly something the FBI would have wanted to examine.
Independently of whose version is correct, there are a number of twists in the tale that are of serious concern.
It appears clearly from the committee hearings that Ford was not aware of the fact that the committee had offered to come to her at a place of her choosing, and conduct the hearing in private. She seemed very surprised when the chair presented a letter sent to her team. So are we to conclude that her team of legal advisors kept her in the dark and had her travel to a very public hearing against her will, that ended up on the world stage? Shocking!
It gets worse.
When pressed about whether she paid for the polygraph test she had taken, and who had advised it, she stated that she had started an online fund raising campaign to pay her legal costs. It transpired that her lawyers commissioned and paid for the said test, making it therefore what we call an ex parte report. The lawyers then stated that they were conducting the case pro bono.
This is where my eyebrows really shot up to my forehead. Lawyers turned philanthropists who decided not to charge a client who is obviously not poor, surprised their own client, who had just stated under oath that she was looking to raise funds for her legal costs.
The added fact that the lawyers were recommended by the senior committee member puts the integrity of the whole proceedings into question, when that same committee should retain its objectivity when hearing a witness, and not set out a priori, before the hearing and testimony, believing one version over another, and recommending law firms.
Maybe Cornyn was being kind when he described the whole farce as a circus.
The problem is that such a circus impacts on the integrity of two of the highest institutions of the land, the US Senate itself, and the Supreme Court, an appointment to which is being debated.
When Lady Justice is ravished by a people’s inquisition, with thousands rushing to write to the committee declaring support for Ford, and a judicial committee filled with political animals forgetting all objectivity, procedures and legal principles, then we know that the likes of US Constitution fathers James Madison and Thomas Jefferson would be turning in their graves in abject despair.
Rodolfo Ragonesi is a lawyer and researcher in history and international affairs.
This is a Times of Malta print opinion piece