The Decision To Testify Rests With Ford But Not The Conditions For Her Testimony

senate_large_sealBelow is my column in the Hill newspaper on the demand of Dr. Christine Blasey Ford that the FBI investigate her allegation of attempted rape against Judge Brett Kavanaugh when they were high school students.  Ford has been given the opportunity to present her allegations before the Senate, which delayed its Committee vote on the confirmation to the Supreme Court.  She can certainly refuse to testify. However, neither the Senate nor the FBI customarily strikes such a quid pro quo agreement for testimony.  Ford can testify or not testify but, if she wants her allegations to be considered, she cannot set conditions on the Senate for such testimony.

It appears that Ford is reversing her latest position and may testify next week but not on Monday and only if the Senate can demonstrate that the hearing will be fair. In the meantime, the Senate is rumored to be preparing for a female lawyer to question Ford.  That is not necessarily good news.  A female lawyer may have less qualms about pressing Ford on inconsistencies than a male Senate just a few weeks away from an election. If Ford does not testify, the Republicans can treat her allegations as unproven and unsupported — and move toward a final vote.

Here is the column:

Congress is accustomed to conditional spending and conditional adjournments. It is not as accustomed to conditional witnesses. Nevertheless, Dr. Christine Blasey Ford has made her testimony on allegations against Supreme Court nominee Brett Kavanaugh conditional on the FBI launching an investigation into whether he tried to rape her in high school.

The new condition conflicts with assurances from Ford’s counsel that she was prepared to state her allegations under oath before the committee if it delayed its scheduled vote on Kavanaugh.

Ford’s demand is, to put it simply, out of line, both with her prior statements and with congressional precedent. It is not that the FBI has not investigated such allegations; it did so with Clarence Thomas. However, there is no precedent for a quid pro quo demand for testimony by a witness. Individuals can certainly refuse to testify, yet conditioning testimony on a criminal investigation by a federal agency is well beyond the province of any witness. There may indeed be a basis for reopening the FBI background investigation, but the priority is to get both the testimony of Ford and Kavanaugh under oath.

This demand is the latest twist in an increasingly confusing record. Ford originally sent a letter to Congress to ask that her allegations be considered by the committee before voting on Kavanaugh. She then demanded that she be left in anonymity — denying Kavanaugh an opportunity to know who had accused him. After her letter was leaked to the media, Ford came forward publicly and said she would testify before the committee. Now she is saying she will not testify unless her demand for an FBI investigation is met.

The letter from Ford’s counsel states, “While Dr. Ford’s life was being turned upside down, you and your staff scheduled a public hearing for her to testify at the same table as Judge Kavanaugh in front of two dozen U.S. Senators on national television to relive this traumatic and harrowing incident.”

She added that she has no intention of appearing for an “interrogation by Senators who appear to have made up their minds that she is ‘mistaken’and ‘mixed up.’ ” However, it could hardly be a surprise to Ford that Republican senators would be skeptical or hostile to her claim.

Indeed, we do not know a great deal about Ford’s allegations because we have not heard from Ford. A Senate confirmation vote was correctly delayed to do precisely that. Ford has every right to expect to be heard on these very serious allegations. She does not have the right to set conditions before testifying under oath.

Where Ford is correct is that she should not be required to sit next to Kavanaugh to give such testimony, if that was indeed the plan. Such an arrangement would be a clearly inappropriate condition by the committee. Ford says Kavanaugh tried to rape her and that she has dealt with that trauma for years; it would be outrageous to require her to sit next to the man who she alleges sexually assaulted her.

While Democratic senators such as Charles Schumer (N.Y.) and Mazie Hirono (Hawaii) have already declared they believe Ford, there has been no testimony from either party. Moreover, while Democrats have insisted Ford has a “right to be believed,” there are basic principles of due process that establish a right to be heard, not a right to be believed. Kavanaugh categorically denies these allegations; he has no less and no more right to be believed. This, apparently, was the position of ranking committee member Sen. Dianne Feinstein (D-Calif.), who said Ford had been “profoundly impacted” by her experience and “I can’t say everything is truthful, I don’t know.

If Ford refuses to testify, she could resolve this matter for members on the fence in favor of Kavanaugh. No question, walking into that committee room would be a terrible burden for anyone; it takes courage to come forward in any case of sexual assault, and doubly so when you must do so before tens of millions of people. However, Ford asked Congress to take her allegations seriously and it is doing so. Either she puts her allegations on the record under oath or those allegations will remain unproven and unsupported.

I have been critical of the degree of documents withheld from the Senate as well as the unilateral labeling of other documents as “Committee confidential.” I still believe further disclosure should be made of Kavanaugh’s record before a final vote. Moreover, Democrats are correct about the needless expedited pace of this confirmation. However, if Ford does not testify, it would magnify criticism of Democrats holding this letter since July, as well as suspicions over the timing of leaking it just before the committee vote. Democrats have made no secret of their desire to force a vote to be held after the midterm elections in November. An FBI investigation would conveniently accomplish that.

It would be useful to interview any witnesses, and that may be where this should lead. However, Democrats themselves did not move with particular dispatch since July in locating possible witnesses. As for Ford, her counsel stated publicly that it is simply not her job (or her counsel’s) to determine if there are corroborating witnesses. So, while arranging a polygraph examination, her counsel did not reportedly seek out witnesses to support the claims of her client, including high school friends.

In reality, Kavanaugh was more likely to face an “interrogation” than Ford. Republican senators were clearly leery of being seen as roughing up a sexual assault victim, and potentially losing female voters in the midterms. There was no such reluctance with Kavanaugh, who was always looking at an aggressive, unrelenting examination by Democrats.

The key to holding testimony is to establish under oath exactly what these two individuals remember; it might not be much beyond what is already known. Feinstein stated this week that she could not recall whether she contacted Ford six weeks ago. Yet, these witnesses would be expected to recall details from 36 years ago. Once their testimony is locked in, the Senate — and the public — will have a better idea of whether further investigation is warranted.

The only condition for either witness that will be recognized by the Senate is that their testimony will be truthful. If Ford will not testify, the Senate committee would have grounds to move toward to a final vote. That may avoid the “interrogation,” only to clear the path to confirmation.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.

128 thoughts on “The Decision To Testify Rests With Ford But Not The Conditions For Her Testimony”

  1. It seems that many men want to retain rape as a privilege without punishment. While testosterone driven violence has been a cultural norm for centuries, that is changing, whether men like it or not.

      1. Stepford Cindy: If you hold a girl down on a bed, with your hand over her mouth to stifle her screams, while you’re simultaneously trying to pull her clothes off, rational ppl would see that as attempted rape. Note the word “rational,” So this may not apply to you.

        1. rational ppl would see that as attempted rape.

          Absolutely. Rational people describe these events all too often. Reasonable people however consider the totality of the description and ask questions. A rational accuser would have some verifiable facts to support the accusation. Maybe where, when, who, physical descriptions, and so on. The reasonable person would want to know why it took 36 years to come up with names. Why now and not last year, or 6 years ago, or 36 years ago. If you are going to claim you are being rational, why are you not being reasonable?

          1. I assumed “Kitty Wampus” was a play on the word catawampus or cattywampus (colloq), generally meaning askew or misaligned.

              1. The Wampus Cats was a folk/rock band that played from the early to mid 1980s in and around Newport News, VA. Is there any way we can tie them to the K case? Was it their music that was playing during the house party? Just kidding! 😼

  2. A female lawyer may have less qualms about pressing Ford on inconsistencies than a male Senate just a few weeks away from an election.

    Here’s hoping the Republicans find a Judith Sheindlin – type to cross-examine her.

    1. Spastic, a female lawyer will ‘have’ to do because Republicans lack female senators.

      And why do Republicans lack female senators..?? ‘Because they want to take away women’s rights’!

      That is, in fact, the main reason this nominee is so contentious: ‘Because Republicans want to take away women’s rights’.

      Ironically their only ‘no’ votes may come from their only ‘two’ female senators.

      1. I learn so much on this blog. I had no idea that Susan Collins and Lisa Murkowski were actually men. I have always assumed they were women. smh.

            1. There are six. Five of them worked in business and agriculture. The sixth is Murkowski, who hasn’t practiced law in 20 years and whose practice was apparently limited to commercial law. Mespo can tell us how much trial experience she’d likely have.

      2. because Republicans lack female senators.

        I can never figure out if you’re lying or stupid. The Republican women in the Senate are (bar Murkowski) not lawyers. They sit on committees other than the Judiciary committee. The Judiciary committee has non-lawyers on it (including the chairman), but it is properly the domain of the 40+ lawyers in the chamber.

        1. Right Spastic, but..

          If there were more Republican female senators, they would have some on the Judiciary Committee; negating the need for an outside counsel.

          And yesterday I reminded readers that 6 years ago, A Republican House Committee, Chaired by Darrel Issa, held a hearing that was presumably about “Religious Freedom” but was really about denying birth control coverage for Obamacare. And in that sham of a hearing, there were virtually no women present among Republicans or the invited witnesses.

          1. Perhaps we need congressional committees by sex so only women deal with women’s issues and men deal with men’s issues. Maybe we need two Congresses, one for da women and one for da men. 2 Presidents, 2 Courts and so on. While we’re at it, let’s do the same thing by race, religion, color, creed, and every other tent you believe needs to have their own specific representation. Or, stop being a partisan hack and follow the effing law and the oath of office.

            1. Olly, thank you. It won’t work with Peter the Shill, because he will not get your point, but thanks anyway.

          2. Peter, you’re welcome to your inane little shticks, but they really do not create obligations for anyone else. Big time pols tend to be male. So do IT techs, engineers, high-level corporate management, long haul truckers, and anyone in the building trades.

              1. Come senators, congressmen
                Please heed the call
                Don’t stand in the doorway
                Don’t block up the hall
                For he that gets hurt
                Will be he who has stalled
                There’s a battle outside and it is ragin’
                It’ll soon shake your windows and rattle your walls
                For the times they are a-changin’

  3. her allegation of attempted rape against Judge Brett Kavanaugh when they were high school students.

    Again, she hasn’t alleged attempted rape. Also, her initial discussion of the ‘incident’ offered in sessions with her marriage counselor, put the number of young men present at 4, provided no names, and put the time frame around about 1985 (her ‘late teens’). Kavanaugh in 1985 was enrolled at Yale and living in Connecticut most of the year and Mark Judge was enrolled at Catholic University. The chances they’d be socializing with a party girl from Holton-Arms are correspondingly much reduced.

  4. What the whole issue reveals is that Judge K is a Cat O Lic, Someone who goes to an all boys school run by Cat O Lics can not be trusted at a drunkin party.

  5. “Ford says Kavanaugh tried to rape her and that she has dealt with that trauma for years; it would be outrageous to require her to sit next to the man who she alleges sexually assaulted her.”
    ***********************************
    Accusers sit just feet away from defendants every day in American courtrooms. Why is Dr. Ford so special? ‘Cause she’s a woman? An academic? A Democratic pawn?

    1. Accusers sit just feet away from defendants every day in American courtrooms.

      Prof. Turley ain’t what Wm. Dyer (“Beldar”) calls a ‘courtroom lawyer’, much less a trial lawyer.

      Why is Dr. Ford so special?

      She’s married to a pharmaceutical executive and resides in a lush suburb. She’s employed as an academic. She grew up in a handsome suburb the daughter of a lawyer well-compensated enough to send her to a private day school (hardly necessary in Bethesda / Chevy Chase, which has satisfactory district schools). Her taken-for-granted understanding of what accommodations she’s due might surprise Ashley Kavanaugh, the dentist’s daughter from Abilene, Tx. It’s a reasonable inference Prof. Turley sees her as a peer and due the deference of a peer. Academics are like that.

        1. Estes. Her father, brother, and sister practice in Abilene. Evidently, her gf founded the practice.

      1. But Spastic, ‘because’ Professor Ford and her husband appear affluent, no one can say she’s looking for money; an important point to note. Ford has almost everything to lose and nothing to gain by making these charges.

        1. What does she have to lose? She’s already a hero to the Left, a group sure to be well-represented among her professional peers as a college professor in California. Her story, lacking specifics, is quite immune to falsification.

        2. Ford has almost everything to lose and nothing to gain by making these charges.

          She has nothing to lose other then being subject to crank e-mails.

          Her lawyer is an official of a sorosphere outfit and she had counsel lined up, polygraph lined up and social media scrubbed before her name was made public. This is all quite contrived. Her motives are pretty plain to the non-stupid.

          1. “She has nothing to lose other then being subject to crank e-mails”.

            Those crank emails could ding by the thousands for several months to come. Yesterday Alex Jones’ featured photo’s from Ford’s high school yearbook on his site; an ominous development for Ford.

            It’s known that a high ratio of Jones’ follower are paranoid fanatics who mercilessly harass anyone demonized by Jones. That, in fact, is the subject of a current lawsuit brought against Jones by parents of the Sandy Hook School Massacre. Those parents have had their lives turned upside-down by Jones’ followers. What’s more, people sharing the same names at those parents have been harassed.

            The truth is that Dr Ford face months, if not ‘years’ of harassment.

            1. Sorry some Sandy Hook parents have put themselves in the hands of an ambulance chaser. No interest in your fantasies about Jones.

            2. The truth is that Dr Ford face months, if not ‘years’ of harassment.

              The truth is, when you pull a weapon and shoot without considering the consequences of your actions, bad things invariably happen.

              1. Typical of wingnut wackjobbery that one of the gullible rubes, dupes, klan wannabees, pocket-traitors or grifters on the make would characterize a true American patriot’s sacrifice–describing the intimate details of the worst incident of her life to total strangers–as a weapon.

                this is to “I’d sell my soul to keep women from having control over their own bodies” ollie

                1. Marky Mark Mark – spoken like a true defense attorney. You are a defense attorney, right? You are not working secretly for the prosecution to keep you clients in prison?

            3. Sen. Grassley sent a request to the FBI this morning requesting they investigate persons who are threatening both Kavanaugh and Ford. Apparently there have been death threats via email and the hacking of Ford’s email account, which is a federal crime.

        3. Not an important point to note at all. She’s a Dem activist – she has the agenda as her marching orders and motivation. Money has nothing to do with it.

  6. It is simply incorrect to assert that Democrats have somehow been sitting on Dr. Ford’s letter “since July “, and that they somehow failed to investigate the allegations during all of this intervening time. Dr. Ford sent the letter to her Congressional Representative, who then turned it over to Senator Feinstein. Dr. Ford requested anonymity, so she wasn’t planning to testify. Senator Feinstein contacted the FBI. Therefore, why would Democrats launch an investigation on their own?

    As to Anita Hill, she alleged sexual harassment, which is far less severe than attempted rape, but Orrin Hatch agreed that her claims should be investigated by the FBI. Not so with Dr. Ford, because Republicans simply insist on trying to deny the majority of Americans a voice in filling the vacant Supreme Court seat. Kavanaugh is the least supported SCOTUS nominee in recent history. An NBC/WSJ poll released yesterday shows that the majority of Americans oppose Kavanaugh, just like the majority of Americans want to keep Obamacare. We all already know what Kavanaugh will do with Obamacare if he gets the chance, along with civil rights, freedom of choice and other rights enjoyed by Americans.

  7. Anyone commenting on Dr. Christine Blasey Ford’s credibility should read the Wikipedia article linked below to get a much better idea of the woman’s considerable professional reputation and academic standing in order to understand just how much Dr. Christine Blasey Ford stands to lose were her accusation against Kavanaugh false.

    https://en.wikipedia.org/wiki/Christine_Blasey_Ford

    I’m not suggesting that a professional reputation is conclusive evidence of credibility. I’m arguing only that Dr. Blasey’s professional reputation would suffer considerable harm if her accusation against Kavanaugh were false. It’s something to think about.

    1. P. S. Those of you who might be looking for information to cherry-pick (I’m looking at you, Bill Martin) will not be disappointed by the Wikipedia article. But you’ll have to read the article with your own eyes. There will be no excerpts from the article linked above from L4D, today.

        1. L4D had previously said, “I’m not suggesting that a professional reputation is conclusive evidence of credibility. I’m arguing only that Dr. Blasey’s professional reputation would suffer considerable harm if her accusation against Kavanaugh were false.”

          Perhaps you didn’t read the disclaimer. You should read the Post Script, too. Meanwhile, at a quick glance, it looks like Ruckman couldn’t handle his divorce.

          1. He murdered his own children to spite his wife. Then he had to kill himself because he knows what happens to child killers in prison.

    2. That would actually mean something if her allegations contained sufficient detail as to be amenable to falsification in principle. As the allegation can never be falsified, she’s made herself quite safe from that.

      No force on earth can conclusively show that there was never a party somewhere in suburban Maryland, in or around 1982, where she was groped by Brett Kavanaugh, leaving no evidence behind.

        1. I’m pretty sure it wasn’t customary, , in the early 1980s, to keep medical records for over 35 years after a patient’s last treatment or discharge. You’d be relying on the recollections of individual practitioners, none of whom are apparently named. So now we’re trying to prove there never was a doctor or medical professional in suburban Maryland in the early 1980s, who treated Ford for unspecified injuries that could have resulted from being held down and groped. Keep in mind that some of those practitioners from that era have no doubt died since then.

          Since the absence of records is expected, it cannot prove they never existed. Similarly, the inability to find a practitioner who recalls the incident doesn’t prove it never happened. Therefore even this claim is unfalsifiable. This is all assuming the best-base scenario, wherein she sought medical treatment contemporaneously, as opposed to psychiatric treatment years later.

          1. I used to work for a medical center. Records could be microfilm or warehoused, but they were not destroyed unless all they contained was demographic information. We had records 60+ years old.

            I think it was the general practice in New York at that time that records maintained by physicians were maintained for seven years after said physician had died, then could be destroyed.

            1. Current Maryland law is 5 years after last contact with the patient. Different practices may go beyond that, but if even one practice in the area, where she plausibly could have sought treatment, fails to keep its records for 36 years or more, then falsifiability falls apart.

              Remember, to corroborate her story, just the one facility has to keep its records from that time, OR just one practitioner has to remember it. To falsify the story, they ALL must have their records from that era.

      1. Excerpted from the article linked above:

        “I did see REDACTED once at the REDACTED where he was extremely uncomfortable seeing me.

        I have received medical treatment regarding the assault.”

        The first sentence cited above is more clearly falsifiable. The second sentence has a curious word choice, “medical treatment ‘regarding’ the assault.” The use of the word “regarding” suggests mental health counseling rather than medical treatment for physical injuries sustained during the assault.

        1. Without a time frame, even the prospects of falsifying the first sentence are pretty grim. And if it were falsified, it’s a tangential detail that wouldn’t dissuade her supporters, who have already hand-waved away inconsistencies between her current story and her therapist’s notes.

      2. Excerpted from the article linked above:

        “At one point when REDACTED jumped onto the bed the weight on me was substantial.”

        The actions described in the sentence cited above could have resulted in bruises or worse. But had that been the case, then the physical injury should have been alleged more clearly than an allusion to medical treatment ‘regarding’ the assault.

        1. It’s possible she was referring to seeking treatment for bruising. Keep in mind, though, we’re talking about falsifiability here. If you could, by some miracle, prove she was never treated by any medical practitioner for any injury that could be sustained from an assault in or around 1982, she can simply say she was referring to psychiatric treatment later on.

          Now, it goes without saying that she could, at any time, provide additional particulars that could bring her claims into the realm of falsifiability, thus bolstering her credibility. To date, she has been very stingy with such particulars.

          1. I understand your concerns, DaveL. I’m also sorely tempted to share them. However, there is an alternative interpretation. Since Dr. Blasey is a clinical psychologist, a statistician and an epidemiologist who has published peer-reviewed articles on the biostatistics of the incidence of depression and anxiety disorders amongst the victims of child abuse as well as amongst people who repress their gender dysphoria, it seems probable that Dr. Blasey would also be familiar with the effects of traumatic experiences upon long-term memory. If so, then Dr. Blasey may have taken pains to allege only those details that she remembers clearly while studiously avoiding any creative misremembering. That would be a less sinister explanation for the lack of specific details in Dr. Christine Blasey Ford’s letter accusing Kavanaugh of sexual assault.

  8. Dr. Ford can testify but not set conditions in the senate….Yes or No @ 10:00am today.

    Dems & Dr. fords legal team keep using the Anita Hill model. Anita Hill & Clarence Thomas were adult federal government employees working at the EEOC. They weren’t 15 year old teenagers who sneaked out their bedroom window & went to a house party.

    How rape accuser Tawana Brawley, Al Sharpton & legal team tried to undermine the entire justice system in 1987. To this day, Al Sharpton believes that Tawana Brawley was raped.

    In 1998, Assisant DA Steven Pagones was awarded $345,000 through a lawsuit for defamation of character that he had brought against Sharpton, Maddox and Mason; Pagones initially sought $395 million. The jury found Sharpton liable for making seven defamatory statements about Pagones, Maddox for two and Mason for one. The jury deadlocked on four of the 22 statements over which Pagones had sued, and it found eight statements to be non-defamatory.

    1. To this day, Al Sharpton believes that Tawana Brawley was raped.

      He admitted to a member of his staff at the time that Brawley was full of it. The whole business was a fraudulent hustle on the part of Mattox, Maxon, and Sharpton and that was perfectly obvious to just about anyone not addled by the dysfunctional shame / honor culture at work in the black population.

    1. Independent Bob – what would be the grounds for investigating her? I suppose they could use the same grounds they used to investigate Trump. You don’t suppose she knows where Mifsud is?

  9. JT, Fox is reporting that she doesn’t want no stinkin’ lawyers examining, only the committee. She goes second and Kavanaugh cannot even be in the room. Well, Kavanaugh has the right to face his accuser, I think they should get a Trey Gowdy from the House to examine her and the Republicans can give all their time to him. Put up or shut up and she goes first. What is Kavanaugh supposed to defend against? Hot air? I hope they are doing blow-ups of her yearbook as we speak.

  10. Meanwhile FineSlime is busy trying to mysticize her way out of the hole she her self dug and worse using Clinton Method of blaming everyone else. What a sick person she is to claim to have honored Fords request when she herself leaked it to the entire planet. But then ‘anything done to advance the party is what the left calls the truth. Remember when there sort of was real Democrats In the Madison sense? Now they can’t even define the term but then…. Their ruling class doesn’t let them.

  11. I hear that Ms. Ford has conditions. One is that when she is making her case judge Kavanaugh not be in the room. Another is that he makes his case first even though the accused often makes a rebuttal. She doesn’t want him to be able to face his accuser and she wants to be able to contradict whatever she says. All I can think of is the Duke Lacrosse players and the crooked prosecutor in that case. I hope this guy makes it. This is trial by media.

  12. This whole episode reminds me, and not strangely, of something put on by a camel jockey, a North Korean or a USA Socialist. I’m wondering when the dirty cops, the Clinton funding, and antifada is going to show up.

    1. Hurry! Go hide! they will find out you’ve been on the internet in violation of your restriction.! Plus, it appears your meds are no longer effective. You know your facility is on to you.

      this is to “Ya, I’m mad as a hatter, but hatin’ the duskies is what my people do best” mikey

      1. Mark, is it possible Professor Ford has links to camel jockeys? Michael believes a certain threat level exists. Should we merely dismiss him as a paranoid lunatic? Or should we consider Michael’s delusions with an open mind?

  13. Turley, I can’t believe what I’m seeing These people are losing their Ph’kin minds. TDS!

    This gal I hear is known as the Capt of the Drunkin Sluts Club? Is that correct, because the other info coming seems to be confirm & we’ve only known who this Low IQ American Hatin Piece of Trash is for a few days.

    If I were her Lawyer I’d tell her to say in public she’s sorry & run off into hiding & that she needs another lawyer as I couldn”t rep Traitors!

      1. You Like Trump Winning don’t you? Buy you a MAGA Hat!

        Because I believe we;ll all be saying Monday afternoon we’ll be saying Supreme Court Justice Kav! LOL:)

          1. Tell that to that ignorant b” ich, the Capt of the Drunken Sluts Club. LOL:)

            Trump tells us we’re not done winning yet, Isee it, feel it… you, Turley I don’t know LOL:)

            USA, USA, USA, etc…

            1. Haha. Just hope no real person who interacts with you has the foresight to call the local sheriff out to your trailer. After all, cooking and smoking meth is still illegal; even in BFE nowhere Oklahoma.

              this is to “ya, my stepdaughter’s a real looker, all right” okie

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