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. BREAKING: Radical anti-Kavanaugh activists from several national leftwing groups planning to bus in protestors and hold protest-training program in DC on Sunday & then stage massive protests and disruptions next week on Capitol Hill to intimidate senators … details to come …

    Paul Sperry tweet
    6:59 PM – 21 Sep 2018

    1. Aha! True American patriots will stand up for our beloved country and defend it from enemies both foreign and domestic. Why am I not surprised that the gullible rubes, dupes, klan wannabees, pocket-traitors and grifters on the make are alarmed at such an event? What is that ticking sound?

      this is to “so if anti-trumpers are American patriots, what does that make me?” t-hot bobbie

      1. Marky Mark Mark – anti-Trumpers are not patriots, they are traitors. And we will set them here, we will seek them there, we will seek them everywhere, the elusive anti-Trumpers. We have uprooted many and we will uproot more.

  2. YALE LAW PROFESSOR VETTED CLERKS FOR KAVANAUGH

    FEMALE PROSPECTS WHERE COACHED TO LOOK LIKE ‘MODELS’

    A top professor at Yale Law School who strongly endorsed supreme court nominee Brett Kavanaugh as a “mentor to women” privately told a group of law students last year that it was “not an accident” that Kavanaugh’s female law clerks all “looked like models” and would provide advice to students about their physical appearance if they wanted to work for him, the Guardian has learned.

    Amy Chua, a Yale professor who wrote a bestselling book on parenting called Battle Hymn of the Tiger Mother, was known for instructing female law students who were preparing for interviews with Kavanaugh on ways they could dress to exude a “model-like” femininity to help them win a post in Kavanaugh’s chambers, according to sources.

    Yale provided Kavanaugh with many of the judge’s clerks over the years, and Chua played an outsized role in vetting the clerks who worked for him. But the process made some students deeply uncomfortable.

    In one case, Jed Rubenfeld, also an influential professor at Yale and who is married to Chua, told a prospective clerk that Kavanaugh liked a certain “look”.

    “He told me, ‘You should know that Judge Kavanaugh hires women with a certain look,’” one woman told the Guardian. “He did not say what the look was and I did not ask.”

    Chua has cancelled her classes at Yale this semester and, according to her office, has been hospitalised and is not taking calls. Rubenfeld sent an email to the Yale Law School community that said his wife had been ill and in hospital and had a long period of recuperation ahead of her.

    The Guardian has learned that Rubenfeld is currently the subject of an internal investigation at Yale. The investigation is focused on Rubenfeld’s conduct, particularly with female law students. Students have also raised related concerns to Yale authorities about Chua’s powerful influence in the clerkships process. The investigation was initiated before Kavanaugh was nominated by Donald Trump to serve on the high court.

    The couple have hired a well-known crisis communications expert but he did not respond to specific questions from the Guardian about Chua’s remarks or the internal investigation.

    Edited from: “No Accident” Brett Kavanough’s Female Law Clerks Looked Like Models”.

    Today’s THE GUARDIAN

    A similar story also ran in The Huffington Post

    1. Prof. Chua counseled her students on how to dress for a job interview. That would include her daughter, who has been hired to clerk for Kavanaugh. It’s a matter of inescapable public record that Ashley Kavanaugh makes cupcakes, so we need to have another set of hearings to determine if BK had his wife murdered and replaced with a robot manufactured in Stepford, Ct.

      1. Spastic, this might be a good time for you to identify ‘your’ gender. I suspect that you’re a woman but your views are always mannish. Can you clear that up for us?

        1. “Who are you?”
          “No one of consequence.”
          “I must know.”
          “Get used to disappointment.”

          ― William Goldman, The Princess Bride

        2. Mannish? What has struck me throughout this ordeal, hell, throughout the Trump Presidency is how many men are so enlightened, so understanding of women’s issues, so…so…..Yet, while they finally acknowledge we are intelligent, worthy beings, they still haven’t figured out we don’t take our marching orders from other women any more than we take them from men and that includes our votes and our opinions. So perhaps your stereotyping needs some adjusting.

          Right now the worst enemies of Dr. Ford are the screaming female politicians who are treating her and talking about her as though she were a child, rather than a solid, intelligent woman with a career and a family and a claim to make. She’d do well to rid herself of those vapid, politically posturing vultures who could care less about her and more about delaying this vote and padding their future Presidential ambitions.

    2. “looked like models” I guess his taste should have been for Za Zu Pitts, Phyllis Diller and Large Marge.

  3. Assuming Kavanaugh is not confirmed,Trump will never nominate a candidate who is palatable to the Democrats be they the majority or the minority in the Senate.Ergo,4-4 chaos in the SCOTUS until 2020,at least,on the most important issues.Not a pretty picture.If this candidate could not be rammed through on the present slim Republican majority,no one will be in any better position to succeed.

  4. I respect the extensive courtroom experience of Jonathan Turley. But I think he speaks condescendingly to women voters in suggesting that they would be swayed in their November votes by seeing Dr. Ford questioned aggressively or skeptically by a male Senator. When are we going to stop this insidious subtle form of sexism, where we anticipate the way a person might react based on their gender? It just further ingrains those stultifying stereotypes to discuss expectations this way. To move forward to a post-gender society of equal rights and responsibilities, it takes conscious effort on everyone’s part to think about each other as unique individuals, with full rational agency, and not members of an immutable group riven with insecurities and biases.

    I disagree, Mr. Turley. You’re spouting Wash DC elitist babble when you put women voters into some stereotyped group. If anything, in the commentary of the past 5 days, we’ve seen female voices speaking up to criticize the circus-like process that began with Sen. Feinstein withholding the letter until just before the vote, and then some Democrat Senate staffer deciding “wouldn’t it be dynamite to release this letter to the press?”.

    Women are bastions of responsibility-taking, and the glue that holds our society together. I give them full agency to vote in November the choice(s) that make things better going forward, not just for their families, but for the nation. To think that you can sway that vote by something as inconsequential as who questions Dr. Ford under oath shows a lack of trust and confidence in the judgment and stability of female America.

    1. I respect the extensive courtroom experience of Jonathan Turley.

      ?? He’s an academic. I think he just does appeals

    2. Women are bastions of responsibility-taking, and the glue that holds our society together.

      Do you know many?

  5. Other demands made by Ford’s lawyers:

    – K must accept random punishment from wheel in “Mad Max Beyond Thunderdome”
    – Republicans must ask all questions by imitating a German character from “Hogan’s Heroes”
    – Democrats get 5,000 guest passes for the hearing

    – Kombucha will be the only beverage served at hearing
    – The letter Q must be removed from the alphabet, it’s just taking up space
    – Sesame Street must formally acknowledge that Bert and Ernie are gay
    – All attendees get a fidget spinner
    – Electoral College must be abolished

    – Republican questions to Ford must be submitted in iambic pentameter
    – Mandatory restroom break every 7 minutes
    – All participants must shout theme from “Dragnet” every time a Democrat mentions the FBI
    – Ford must be addressed as “my Khaleesi”

    – GOP must agree to expand Supreme Court to 19 seats and appoint Hillary Clinton to 5 of them
    – Cory Booker gets a Spartacus moment and no one is allowed to laugh
    – Kavanaugh must do a shot every time a Democrat says the word “credible”
    – Kavanaugh must change his first name

    Tweets by John Hayward
    20 Sep 2018

  6. I believe Ford should testify with or without an FBI investigation. Even if there is no FBI investigation, Congress can still investigate the allegations after Democrats win the House in November. Congress has subpoena power and can call witnesses to testify under oath about what happened.

    I also believe Kavanaugh will be confirmed because it will be easy for Republicans to cast doubt on Ford’s testimony. While only 2-6% of sexual assault allegations are false, the alleged act was a long time ago, so it will be easy to paint her as misremembering the incident.

    Not all false testimony is caused by telling lies. Sometimes, people give false testimony because they remember things wrong.

      1. Rothenberg / Gonzales’ classification of each race suggests a loss of 16 seats in the House and a gain of 1 or 2 in the Senate. But if fantasy helps you get through the day.

          1. FiveThirtyEight has gotten every congressional result right since it was founded in 2008.

            Say their advertising agency.

  7. A sign of a great teacher – I suppose – is the impact on a student – and KellyAnne Conway is doing Turley proud. She is handling this situation calmly, fairly, intelligently. Kudos to Turley!!

  8. Would it be only that your dispassionate opinion be read and understood. Not likely in the crazy days of modern America where the cudgel is the only persuader viewed as proper. Scream louder and longer is seen as the means to establish truth, and truth is what the party of resistance deems it to be, woe unto the one who questioned that truth.

  9. NJ Senator Cory Booker aka Spartacus, wrote a column for the Stanford University newspaper back in 1992 while he was a student there:

    In the college newspaper, he described the episode as emblematic of his adolescent understanding of intimacy. “Ever since puberty, I remember receiving messages that sex was a game, a competition,” he wrote. “Sexual relations were best achieved through luck, guile, strategy or coercion.”

    Drinking, he added, accelerated unsafe encounters. He recalled the counsel of a friend: “With liquor you’ll get to bed quickly.”

    “What do you think happened? She invited me back to her room at 3 a.m.”
    “I’ve got to find a way to snatch that snatch.”
    “The best thing for that girl would be to be tied down and screwed.”

  10. PROFESSOR TURLEY NOTES DELAY IS SOUGHT FOR POLITICAL REASONS

    “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”.

    There may be some truth to this but..

    During Obama’s last year, the Republicans were perfectly content to let the Supreme Court go ’14’ entire months with only 8 members. According to Senate Majority Leader Mitch McConnell, there was no urgent need to fill the vacancy left by Justice Scalia’s death.

    But now Republicans are stressing that Kavanaugh must be confirmed by October when the court begins its new session. What hypocrisy!

        1. Strange as it may seem to you Peter, Felonia von Pantsuit doesn’t get credited with the support of people who are too disengaged to ever vote.

        2. I guess the same total voters who elected every president we’ve ever had. Are you unclear on how US elections work, Peter?

          1. No, Foxtrot, it’s not the ‘same total voters’ who elected every president. What gave you that idea??

            Typically presidents win by a Popular Vote margins of 2%-3%. Trump lost that vote by 2%. There was nothing normal about the 2016 outcome.

  11. Neither the senate nor the FBI CUSTOMARILY enters into quid pro quo agreements for testimony. Interesting turn of phase. Some witnesses are given immunity. Some witnesses don’t have to do so under oath. Some witnesses enjoy limited time in the hearing. There are plenty of adjustments, positive or negative, to the details of a Senate hearing dictated by witnesses, their supporters or their detractors.

    1. There is a difference between witnesses that Congress asks to testify, and witnesses that (sort of) demand to testify before Congress. This woman, along with the Dems, blow up the process at a politically motivated time, and then demand conditions under which they will provide testimony related to their claims. That is some chutzpah.

  12. 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.

    Damn Turley, did you get impaled on the fence? Needless expedited pace; holding documents and suspicious timing before the vote? Which is it? By not having the balls to actually take a stand, you’ve nuked your own post.

    1. Turley’s statement is spot on. The Senate is Republican dominated and this is a Republican appointed and desired nominee. They want to, for their own power, get Kavanaugh in before November. When the shoe was on the other foot the Republicans acted against the best interests of the people in retarding the procedure for the better part of a year. Olly, don’t be such a hypocrite.

      Regarding the documents that are not being released, Turley is absolutely correct and again when it is the Democrats withholding stuff, the Republicans whine. Again, hypocrisy. Olly if you have something valid to say, go ahead; but typically you are just another ‘my side right or wrong’ type.

      1. Turley’s statement is spot on.

        How could it not be, it’s spot on for every angle imaginable.

        When the shoe was on the other foot the Republicans acted against the best interests of the people in retarding the procedure for the better part of a year.

        The American people spoke to their best interests in the following election. They also could have flipped the Senate and didn’t.

        One thing I know for certain, if you don’t see a point I’m making as valid, then I’m on the right track.

        🙂

        1. Individual voters don’t have a choice on the ballot which party controls which house of congress. They vote for individual seats. The “gavel” decision is based on mass action summing over seats, over which individual voters have no direct say.

  13. What’s the odds that demands keep coming to keep pushing a possible appearance farther and farther down the road? The result no appearance and the Dems get their delay.

    1. TGZ, that is a double edged sword as well. The longer they wait the more support for Kav can be rallied and thus the more time to smear/discredit Ford. The other thing that maybe tied to this stall is if there is another incident and that person comes forward and makes another similar accusation.
      Either way Feinstein looks like a total partisan hack for sitting on Ford’s letter.

      1. @BoU-Kavanaugh will not get anymore support then he has now. The problem is the GOP doesn’t have the heart to fight the way Feinstein and Spartacus do. Flake and Collins can’t be counted on and God only knows how many others are shook up. They have to set the date, time and conditions if she’s a no show move on.

        1. I disagree. The stunt that McConnell used to push the Garland nominee into oblivion was far more shrill then voting in Kav. Susan Collins and Murkowski will hold their noses and then ride off into their pensions. If the court stays the same as it is right now with just 8 for the rest of Trump’s term the damage is the same. I think the odds of RGB dying before the Dems get the White House is far more probable.
          The Dems are just postponing the inevitable. Also by the time the 2020 elections roll around Mueller should be done and his pursuits could easily leave the Dems as desperate as ever and left knowing that it was their poor choice of a candidate, not the Russians that put them where they are and will be going forward.
          Their only hope is one more accuser to come forward.

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