How Jeff Flake’s One-Week Delay Helped Clear Brett Kavanaugh’s Name, by John McCormack

The odds on Kavanaugh’s confirmation are higher now than they were before the delay. From John McCormack at

Brett Kavanaugh Supreme Court hearing

Let us count the ways.

When Arizona Republican senator Jeff Flake insisted on an additional one-week delay of the Kavanaugh confirmation vote in order to allow the FBI to conduct a supplemental background-check investigation into allegations of sexual assault, many Republicans feared that it would accomplish nothing other than provide time for more people to smear Kavanaugh with new false allegations.

In fact, the delay has actually helped clear Kavanaugh’s name.

FBI investigation turns up no groundbreaking information?

Shortly after 11 a.m. on Thursday, October 4, Democratic senators Dianne Feinstein and Chuck Schumer spoke to the press following a confidential briefing about the FBI’s supplemental background check. While the senators were limited about what they could say, Feinstein focused first on the fact that neither Kavanaugh nor Ford, who testified publicly for hours last week, were interviewed by the FBI.

If the FBI investigation had turned up some groundbreaking new information, that is not the kind of thing you’d expect the Democratic senators to focus on.

The FBI interviewed all the alleged party attendees—Ford’s lifelong female friend Leland Ingham Keyser, Kavanaugh friend P.J. Smyth, and alleged accomplice Mark Judge. Keyser had previously said she recalls no party at which Kavanaugh was present and does not know Kavanaugh. Schumer and Feinstein gave no indication Keyser has changed her story.

The FBI also interviewed Chris Garrett, a person Ford went out with around the time of the alleged assault in 1982 and Ford’s only known social connection to Kavanaugh and Judge. The FBI also interviewed Tim Gaudette, who hosted a July 1, 1982, party that has been the focus of much speculation. Schumer and Feinstein gave no indication those interviews turned up groundbreaking information.

Senate Judiciary Committee chairman Chuck Grassley said in a statement: “This investigation found no hint of misconduct and the same is true of the six prior FBI background investigations conducted during Judge Kavanaugh’s 25 years of public service.”

Republican senator Susan Collins of Maine, a key undecided vote, said this morning: “It appears to be a very thorough investigation.”

Senator Flake told reporters: “We’ve seen no additional corroborating information.”

By all indications, the additional FBI investigation has been good for Kavanaugh.

Let’s also consider the other ways in which the week-long delay helped Kavanaugh clear his name.

Wild Avenatti-Swetnick claims collapse

The day before the Ford-Kavanaugh hearings, lawyer Michael Avenatti released a sworn declaration from Julie Swetnick claiming that Kavanaugh was part of a gang of serial gang-rapists.

The wild accusation of gang rape was implausible from the beginning but was taken seriously by Senate Democrats and many in the mainstream media. As we noted hours after Swetnick’s claim first appeared on September 26: “If what Swetnick alleges is true—that there were ‘many’ parties at which ‘boys lined up’ outside of rooms to commit ‘gang rape’—then there must exist many victims, many perpetrators, and many witnesses.” The Wall Street Journal reported on September 29: “The Wall Street Journal has attempted to corroborate Ms. Swetnick’s account, contacting dozens of former classmates and colleagues, but could not reach anyone with knowledge of her allegations.” Swetnick told NBC on October 1, that “everybody in the county remembers those parties,” and she gave the names of four people to NBC: One was deceased, one said he didn’t know a Julie Swetnick, and two did not reply.

In that same interview Swetnick backtracked on several key allegations in her sworn declaration. You really have to watch Swetnick’s entire October 1 NBC interview to see how Swetnick’s already implausible claims against Kavanaugh have totally collapsed.

The New Yorker’s “corroborating” source for Deborah Ramirez undermined

Deborah Ramirez is the Yale classmate of Kavanaugh’s who now claims that Kavanaugh exposed himself as a college freshman at a party. Ramirez’s claim was already dubious because (1) named eyewitnesses deny the allegation and (2) Ramirez herself wasn’t sure in recent weeks if Kavanaugh had done what she now alleges. “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,” the New York Times reported. Ramirez was only willing to make the allegation, the New Yorker reported, after “six days of carefully assessing her memories and consulting with her attorney.”

The “corroborating” source for Ramirez’s claim was anonymous and said he heard it second-hand, but he was “one-hundred-percent-sure” he heard about it from an eyewitness. From the New Yorker’s September 23 story:

A classmate of Ramirez’s, who declined to be identified because of the partisan battle over Kavanaugh’s nomination, said that another student told him about the incident either on the night of the party or in the next day or two. The classmate said that he is “one-hundred-per-cent sure” that he was told at the time that Kavanaugh was the student who exposed himself to Ramirez.

On Wednesday night, the New Yorker published a new story revealing the anonymous source’s name–Kenneth Appold–and also reported:

Appold said that he initially asked to remain anonymous because he hoped to make contact first with the classmate who, to the best of his recollection, told him about the party and was an eyewitness to the incident. He said that he had not been able to get any response from that person, despite multiple attempts to do so. The New Yorker reached the classmate, but he said that he had no memory of the incident.

Read that last sentence again (emphasis added). The first-hand source for the second-hand source says he has no recollection of the incident. It’s remarkable the New Yorkerpublished the story of Ramirez’s allegation in the first place.

The collapse of the Swetnick and Ramirez allegations greatly undermines the overall argument that Kavanaugh could have been a teenage sexual predator. The real villains who have been taken down by the #MeToo movement all exhibited patterns of sexual abuse and assault.

A lawyer aiding Debra Katz, Christine Blasey Ford’s lawyer, basically acknowledged as much two weeks ago. “My friend Debra Katz (Katz, Marshall & Banks) is currently representing Christine Blasey Ford,” D.C. lawyer Andrea Caputo Rose wrote in a September 16 email to dozens of women who attended high school in the D.C. area when Brett Kavanaugh did. “Assuming that [Christine Blasey Ford] is telling the truth, the odds are good that there may be other women who had a similar experience, and I am reaching out to you to help find out if this is the case.”

The September 16 email was sent hours after Ford publicly stepped forward in the Washington Post story. But in the 18 days since that email was sent, no other credible allegations of sexual assault against Brett Kavanaugh have emerged. (To repeat: The gang-rape allegations are wild and not credible.)

So a lawyer helping the Blasey Ford legal team sought additional credible assault allegations about Kavanaugh that she said would bolster he case against him—and she came up empty.

Ford’s allegation vetted and questioned

Left with no overall pattern of sexual abuse, we must now consider Christine Blasey Ford’s allegation of sexual assault against Brett Kavanaugh.

Specifically, Ford alleges that 17-year-old Brett Kavanaugh and Mark Judge shoved a 15-year-old Christine Blasey into a bedroom, turned up music in the bedroom, Kavanaugh pinned her against the bed, ground his genitals against her, groped her, tried to disrobe her, and covered her mouth with his hand to muffle her screams, before his friend Mark Judge, who was allegedly in the room the entire time, jumped on Kavanaugh and Ford, sending them all “toppl[ing],” which allowed her to escape.

While all this was allegedly going on upstairs, in Ford’s telling, there were three other people downstairs who had only consumed only one beer that evening. As the Washington Post originally reported: “She said she recalls a small family room where she and a handful of others drank beer together that night. She said that each person had one beer but that Kavanaugh and Judge had started drinking earlier and were heavily intoxicated.”

The three other people Ford recalls at the party are her lifelong female friend Leland Keyser, a Kavanaugh friend named P.J. Smyth, and a boy whose name she can’t recall.

Kavanaugh, Judge, Smyth, and Keyser have all denied any recollection of a party like the one described by Ford. You might discount the statements of Judge, as an alleged accomplice, and Smyth, as a male friend of Kavanaugh’s, but Keyser was a female classmate and a lifelong friend to Ford.

Keyser, who in Ford’s telling also had only one beer at the alleged party, has no recollection of any party at which Kavanaugh was present. Keyser, through an attorney, said she does not know Kavanaugh. “Simply put, Ms. Keyser does not know Mr. Kavanaugh and she has no recollection of ever being at a party or gathering where he was present, with, or without, Dr. Ford,” Keyser’s lawyer said in a statement.

So, we are left with no corroborating witnesses for Ford’s allegation, no contemporaneous accounts of Ford’s allegation, and no pattern of sexual abuse committed by Brett Kavanaugh.

Ford first described the alleged assault in detail for the first time in 2012, during a couple’s therapy session, but Ford and her lawyers have not provided the notes to be confidentially reviewed by the FBI or the Senate Judiciary Committee. According to the Washington Post, the notes “say four boys were involved [in the assault], a discrepancy Ford says was an error on the therapist’s part. Ford said there were four boys at the party but only two in the room.”

The notes also do not mention Kavanaugh by name, but Ford’s husband told the Post that she did mention him around the time of the May 2012 therapy session and expressed concern Kavanaugh might be a Supreme Court nominee. In March 2012, the New Yorker concluded a profile of Brett Kavanaugh with this line: “If a Republican, any Republican, wins in November, his most likely first nominee to the Supreme Court will be Brett Kavanaugh.” Arizona prosecutor Rachel Mitchell notes this fact and others in a memo examining and questioning Ford’s testimony. Mitchell concluded that no reasonable prosecutor would bring the case against Kavanaugh, and the evidence doesn’t meet the standard for a civil case in which it simply must be proven that the allegation is more likely than not true. “A ‘he said, she said’ case is incredibly difficult to prove. But this case is even weaker than that,” Mitchell wrote.

Ford’s allegation lacks corroboration, but it is nearly impossible to disprove. The weeklong delay has, however, provided more time for senators and the public to consider the problems with the allegation that Kavanaugh committed sexual assault one time as a teenager.

Perjury claims debunked

With the gang-rape and indecent exposure allegations falling apart, and Ford’s allegation of sexual assault remaining uncorroborated, Democrats began to accuse Kavanaugh of committing perjury during his testimony last week.

For example, the Associated Press tweeted on Friday: “Supreme Court nominee Brett Kavanaugh wrongly claims seniors were allowed to have beers because the drinking age in Maryland was 18.” The AP article included several quotations from Kavanaugh, but omitted the full quote from his opening testimony delivered last Thursday: “The drinking age was 18 in Maryland for most of my time in high school, and was 18 in D.C. for all of my time in high school. I drank beer with my friends. Almost everyone did. Sometimes I had too many beers. Sometimes others did. I liked beer. I still like beer. But I did not drink beer to the point of blacking out, and I never sexually assaulted anyone.” [emphasis added].

Kavanaugh accurately described the drinking laws in Maryland and D.C. (Kavanaugh’s home as a teenager was in Maryland, literally a 5-minute walk from the District of Columbia). Kavanaugh seemed to be making a point about the fact that high-school drinking was more common and socially acceptable when the legal age was 18. He did not lie.

Others have argued that Kavanaugh perjured himself by denying that he drank excessively. The New York Times reported: “During Thursday’s hearing, [Kavanaugh] spoke of enjoying beer but said he did not drink to excess.” The New York Times’s reporting is false. Kavanaugh said that when he was young, he sometimes had “too many beers,” sometimes “fell asleep” because of his drinking, and sometimes drank to the point of vomiting because he has “a weak stomach, whether it’s with beer or with spicy food or anything.” What he denied was “blacking out” which is a specific term referring to temporary alcohol-induced amnesia. As Washington Post columnist Megan McArdletweeted: “People are manufacturing statements that he never drank, or got drunk, then beating the snot out of their strawman. He tried to frame his drinking in the best possible light, but he didn’t lie about it, and no, that’s not perjury.”

Finally, some have argued that Kavanaugh lied by saying he had never attended a party “like” the one described by Ford. Questioners could have done a better job of getting Kavanaugh to clarify what precisely he meant, but some of the defining features of that party were that

  • It occurred not far from the country club.
  • It included Leland Ingham Keyser and Christine Blasey Ford.
  • It included Kavanaugh, Smyth, Judge, and one other male.
  • Kavanaugh and Judge were extremely inebriated while everyone else had precisely one beer.

Kavanaugh has never denied being friends with Judge and Smyth. He has not even denied the possibility that he met Keyser or Ford at a party. “It is possible that [Ford and I] met at some point at some events, although I do not recall that,” Kavanaugh testified. “To repeat, all of the people identified by Dr. Ford as being present at the party have said they do not remember any such party ever happening.” What Kavanaugh denied was attending a particular party like the one described by Ford to the Washington Post. And that denial does not amount to perjury either.

In the week since the Ford-Kavanaugh hearings, no one has been able to disprove Ford’s nearly unfalsifiable allegation, but the extra week has very clearly helped clear Kavanaugh’s name.


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