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Reasonable Doubt Or Per Se Defamation? Republicans Throw Chris Garrett Into The Fray [UPDATED]

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IMG_0026The unfolding drama over the allegations of Christine Blasey Ford just got even more bizarre as Ed Whelan, president of the conservative Ethics and Public Center (EPPC) released the picture of a remarkably similar looking teenager who could have been the culprit in the alleged attempted rape. While Ford insists that she could not be mistaken, the release of the photo adds a new element to the hearing . . .  and could raise some interesting legal issues after suggesting Chris Garrett (right) could be responsible for the attack.  The problem is that there is not a single scintilla of evidence that has been offered to link Garrett to the alleged assault.  He has simply been drop into these boiling cauldron and the only explanation is his similar looks and home in the area (which is hardly surprising for schoolmates who attended the same school).

Update: Whelan has now issued a statement that “I made an appalling and inexcusable mistake of judgment in posting the tweet thread in a way that identified Kavanaugh’s Georgetown Prep classmate. I take full responsibility for that mistake, and I deeply apologize for it. I realize that does not undo the mistake

On Thursday afternoon, Whelan released the pictures and suggested that the  “Maryland suburban home” might have been Garrett’s, which is also “not too far from the Columbia Country Club.” This advanced the best possible approach for the GOP in the upcoming hearing: that Ford could be telling the truth about the attack but could be mistaken about the attacker.

As shown below, Whelan is clearly implicating Garrett as a Georgetown Prep classmate, friend, and football teammate of Brett Kavanaugh’s.

That of course could be viewed by Garrett as the basis for a defamation or false light tort.  This is an allegation of criminal conduct.  Criminal conduct has long been recognized as a per se category of slander under common law torts as well as such categories as moral turpitude and unchastity or impugning professional reputation.

Garrett is not a public figure so he does not fall under the more generous standard (for accusers) of the actual malice test, requiring a showing of knowing falsity or reckless disregard of the truth.  Of course Whelan can argue that he is merely showing how easy it is to confuse things and people 36 years ago. Yet, the import seems more incriminating in the posts below.

Yet, Whelan added “To be clear, I have no idea what, if anything, did or did not happen in that bedroom at the top of the stairs, and I therefore do not state, imply or insinuate that Garrett or anyone else committed the sexual assault that Ford alleges. Further, if Ford is now mistakenly remembering Garrett to be Kavanaugh, I offer no view whether that mistaken remembrance dates from the gathering or developed at some point in the intervening years.”

That may or may not be enough for Garrett who now finds himself in the middle of a maelstrom as a suspected attempted rapist.

Indeed, Whalen later apology still leaves the many lingering questions for Garrett that could follow him in this career. Consider the response from New York Times columnist Ross Douthat tweeted: “I don’t know Brett Kavanaugh, which has made it easier for me than for conservatives closer to the man to believe he might be guilty. I do know Ed Whelan, which makes me assume there’s more reason to believe the doppelganger theory than just what he just tweeted. We’ll see.”

Ross Douthat

✔@DouthatNYT

I don’t know Brett Kavanaugh, which has made it easier for me than for conservatives closer to the man to believe he might be guilty. I do know Ed Whelan, which makes me assume there’s more reason to believe the doppelganger theory than just what he just tweeted. We’ll see.

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