Below is my column in USA Today on what appears now to be a clear perjury strategy against Judge Brett Kavanaugh that focuses more on his credibility than his alleged criminality. There are many who have questioned whether Kavanaugh testified truthfully on the meaning of well-known sexual terms as well as his statements on his prior drinking habits. Clearly, any false testimony would be a barrier to confirmation regardless of the subject. Yet, this confirmation could create a new term for future nominees: “boofed.” The questioning on high school lexicon and conduct is a new element in confirmations — precedent that could further degrade our process for selecting Supreme Court justices.
Here is the column:
As the FBI continues its investigation into claims that Judge Brett Kavanaugh is a serial sexual assaulter, it remains doubtful that dispositive or even incriminating new evidence will be uncovered given the declarations submitted on the record by principal witnesses. But that may never have been the real strategy against Kavanaugh. This looks like a perjury trap.
While Kavanaugh believed Democrats were trying to paint him as an extremist, as they did Robert Bork in 1987, they actually were trying to trap Kavanaugh into false statements on terms and conduct from decades earlier. Indeed, Kavanaugh could achieve the immortality in the lexicon of confirmations not as a “Borked” but a “boofed” nominee.
The FBI is investigating allegations by Dr. Christine Blasey Ford with the disadvantage of limited time (one week) and a locked-in record. The key witnesses have already made their statements under penalty of felonies to Congress, where they deny any recollection of the party described by Ford or even seeing such conduct by Kavanaugh. The Democrats knew this was unlikely to change with the FBI collecting additional statements.
Democrats didn’t seriously question Kavanaugh
The FBI is also looking into an allegation from Deborah Ramirez, who says Kavanaugh exposed himself to her at a party while both were students at Yale. But Ramirez admitted to having problems recalling the event due to her own heavy drinking, and she said her memory was refreshed after she first declined to come forward. There have been no direct witnesses at this party who recall the disgusting act alleged by Ramirez.
What was most striking at the hearing is that Democratic senators did not seriously question Kavanaugh on the details of these allegations. Instead, they focused on his refusal to call for an FBI investigation or absurd asides, like Connecticut Sen. Richard Blumenthal demanding to know whether Kavanaugh “believed Anita Hill” in her testimony against Clarence Thomas 27 years ago. The only substantive focus was on Kavanaugh’s drinking in high school and college, and risqué references to his high school yearbook.
While the Democrats suggested this was meant to bolster Ford’s account of Kavanaugh being almost blacked out with alcohol, it seems quite implausible given the specificity of the questions, particularly on the yearbook entries. Clearly, the Democrats were trying to establish that Kavanaugh has lied about drinking and sex in his youth.
It all came down to a single moment when Kavanaugh would be faced with admitting to alcohol abuse and embarrassing sexual terminology or deny such alleged facts under oath.
Rhode Island Sen. Sheldon Whitehouse provided the moment by demanding to know the meaning of “boofed,” “Devil’s Triangle” and other terms in Kavanaugh’s high school yearbook. These terms are references to anal and group sex.
Many of us were unfamiliar with them (honestly, I now realize I led a relatively monastic life), but they are apparently well-known. Kavanaugh’s description of the first as flatulence and the second as a drinking game led to a torrent of ridicule. Despite someone in Congress trying to change the Wikipedia definition of “Devil’s Triangle” to include a drinking game, Kavanaugh is believed by many to have knowingly lied about these terms as well as when he denied that he drank excessively.
It was a curious tactic for the Democrats who once argued that President Bill Clinton could not be impeached for lying under oath about sex. They now argue that Kavanaugh should be denied confirmation (or if confirmed actually impeached by a later Democratic Congress) on the basis of lies about drinking or sexual terms.
The fact is that there is no subject matter exception for perjury. A lie about anything counts as a lie. Clinton was rightfully impeached on this basis, and Kavanaugh could be rejected on that basis. (Full disclosure, I testified during the Clinton impeachment hearings that such perjury would constitute an impeachable offense).
Democrats boofed Kavanaugh
Where does that leave us? A new college friend has come forward to say Kavanaugh lied when he denied abusive drinking. Charles Ludington, a professor in North Carolina, told the FBI that Kavanaugh was a “belligerent and aggressive” drunk in college. Others have also contradicted Kavanaugh. However, Kavanaugh did not deny drinking. Indeed, as now famously mocked by Matt Damon on “Saturday Night Live,” he repeatedly (and rather painfully) said that he liked beer. He did not deny ever being drunk.
If the assault allegations are left unproven and Kavanaugh’s testimony on drinking is relatively vague, that leaves his yearbook and the sexual references often exchanged among teenage boys.
Those references in a 17-year-old’s yearbook could become the legal equivalent of the Butterfly Effect (where a butterfly flapping its wings could eventually cause a typhoon in another part of the world). They have precious little to do with any alleged assault or Kavanaugh’s undeniable qualifications as a jurist. The problem is that Kavanaugh had to answer the questions — or refuse to answer as a matter of dignity. A new political verb is born: to boof, leaving the nominee with the choice of either degrading or false testimony on collateral or marginal terms or conduct. As with Bork, boof will be available as a noun, and adjective and an adverb for future nominations.
Absent some sudden corroboration for Ford or Ramirez, it could come down to simply that. And if this is the standard for future confirmations, then we are all boofed.
Jonathan Turley, a member of USA TODAY’s Board of Contributors, is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter: @JonathanTurley