Kavanaugh Impeachment Would Be Long On Politics And Short on Principle

Below is my column in the Hill newspaper on the recent allegations published by the New York Times against Justice Brett Kavanaugh. Despite the drafting of an impeachment resolution, the Democratic leadership has signaled that it has no intention of moving forward with an investigation. Instead it has been the New York Times that have been on the defensive over omissions from the column. Nevertheless, most of the Democratic candidates for president have called for Kavanaugh’s impeachment.

Here is the column:

One year ago, in the face of allegations of drunken sexual assaults in high school and college, then Supreme Court nominee Brett Kavanaugh appeared before the Senate Judiciary Committee and angrily declared that confirmations had turned into a “national disgrace” that “replaced advice and consent with search and destroy.”

It was a performance that left most everyone enraged, some for Kavanaugh and others against him. However, Kavanaugh was confirmed, and he promised that he would put the matter behind him. His critics made no such promises. Indeed, various Democratic members of Congress called for continued investigations and even impeachment at the time of his swearing in ceremony last fall.

Now, Justice Kavanaugh has been hit with a new allegation by the New York Times, that he exposed himself at a party at Yale and that reporters found additional corroboration for a similar account raised by former Yale classmate Deborah Ramirez. The news was only a few hours old when Democratic candidates lined up to call for his immediate impeachment, despite little information on the basis or support for the allegation.

Right away, former Housing and Urban Development Secretary Julian Castro essentially called for impeachment simultaneously with the release of the story. He was followed by former Congressman Beto O’Rourke, Senator Cory Booker, and others. Senator Kamala Harris, a former prosecutor, did not wait for evidence, tweeting that Kavanaugh is “an insult to the pursuit of truth and justice. He must be impeached.” Senator Elizabeth Warren, a former law professor, was not content with just impeaching Kavanaugh, tweeting that “like the man who appointed him, Kavanaugh should be impeached.”

Impeachment has become an article of faith for Democratic candidates who are expected to show no doubt about the guilt of Trump, Kavanaugh, or other figures like Attorney General William Barr. They are expected to impeach them all, and let God sort them out on the merits.

During the Kavanaugh hearing, I supported the investigation of allegations while criticizing both Republicans and Democrats for their conduct. Republicans took steps that undermined a full investigation, including arbitrary deadlines and artificially limited examination of potential witnesses. Democrats showed little willingness to consider the possibility that Kavanaugh could be innocent. Indeed, when Christine Blasey Ford first came forward with allegations of a sexual assault by Kavanaugh as a high school student, Senator Mazie Hirono immediately declared that she believed Ford and told all men to “shut up” and just believe her too.

Hirono was later asked why Kavanaugh should not be entitled to the same presumption of innocence as anyone else. Hirono refused to agree with that principle and said she would “put his denial in the context of everything that I know about him in terms of how he approaches his cases.” She said she would consider his “ideological agenda” and her view that “he very much is against women’s reproductive choice.”

It is hardly surprising, therefore, that Hirono was one of the first to call for impeachment this week without reading any of the new evidence or speaking to any of the new alleged witnesses. She declared that the allegations established, once again, “the serious corroborated allegations of sexual assault by Justice Kavanaugh.” Senator Sheldon Whitehouse had already promised to remove Kavanaugh when he was confirmed, stating that it did not matter if he was confirmed because “as soon as Democrats get gavels,” the party will investigate and possibly impeach him.

The problem is that there still is more presumption than evidence of guilt against Kavanaugh. Washington public interest lawyer Max Stier made the latest allegation, but the woman involved in the alleged incident is a friend of Ramirez and has said she has no memory of it. Stier reportedly insisted she was intoxicated, as was Kavanaugh. He has since refused interviews and said he wanted his allegation to remain confidential. He gave the information to Democratic senators before Kavanaugh was confirmed, and the FBI was informed of the additional alleged incident.

The allegation is troubling and worthy of investigation, but Democratic leaders again seem to be operating off the evidentiary standard of the Queen of Hearts in Alice in Wonderland: “Sentence first. Verdict afterwards.” They have called for the impeachment and removal of a Supreme Court justice on the basis of an act of which the alleged victim has no corroborating memory. Moreover, Stier says two men dragged the woman to Kavanaugh, who allegedly exposed himself, yet neither of those men have come forward. Of course, those men may not be eager to admit a role in such an incident, but no other witnesses from the party have given supporting evidence either.

As the last lead counsel in a Senate impeachment trial, I am indeed chilled by this rush to judgment, particularly by federal lawmakers who must serve as the constitutionally designated jury in any trial. Kavanaugh would have to be impeached by the House first, then removed by a two-thirds vote in the Senate. With the current Republican majority in the upper chamber, that would seem less than likely, though most senators would not prejudge evidence not in the record.

Only one sitting Supreme Court justice has ever been impeached. That was Samuel Chase, who went on to be acquitted and remained on the bench. The last jurist to be impeached was my client Judge Thomas Porteous. Another such jurist, who was impeached and removed from the bench, would likely vote on any Kavanaugh impeachment. That was Alcee Hastings, now a House member, dean of the Florida delegation and vice chairman of the powerful House Rules Committee.

The new allegations obviously could present a threat to Kavanaugh, if proven. Kavanaugh emphatically denied under oath that he engaged in such conduct. While impeachment is usually reserved for acts committed during service, perjury in a confirmation hearing is generally accepted as a basis for impeachment, particularly since Kavanaugh was a sitting federal appellate judge at the time.

The Framers set a high standard for impeachment and removal, to deter politicians from using the constitutional process for partisan gain. While politicians love to cite the poorly considered statement by Gerald Ford that “an impeachable offense is whatever a majority of the House of Representatives considers it to be,” there is a standard in the Constitution, and members take an oath to faithfully carry out such duties, including only impeaching on the basis of proven “high crimes and misdemeanors.” It is akin to saying that House members are not expressly barred from self-dealing under the Constitution so they are free to pursue openly corrupt practices. Just because something may not be subject to judicial review does not mean that it is countenanced by the Constitution.

Any such investigation must start with the principle that Hirono evaded, which is that Kavanaugh deserves a presumption of innocence. That does not give him immunity or special treatment. To the contrary, he is afforded the same protections that he swore to guarantee, impartially, to all Americans in this country. Impeachment may make for good politics but, without a presumption of innocence, it is little more than mob justice dressed up as a constitutional proceeding.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He also served as the last lead counsel in a Senate impeachment trial and testified as a constitutional expert in the Clinton impeachment hearings. You can follow him on Twitter @JonathanTurley.

38 thoughts on “Kavanaugh Impeachment Would Be Long On Politics And Short on Principle”

  1. Kavanough had a hearing and defended himself quite well. The so called “journalists” throw dog poop out of the taxi as they ride around NYC.
    No person on Earth deserves to be castigated like this.
    Impeach the impeachers.

  2. It’s not just Kavanaugh. If Trump gets reelected, there may be another Supreme Court appointment coming. If that happens I suspect there will be a suicide watch at the DNC.

  3. Principle has little to do with any of this. Whatever disagreements I might have with JT, I believe him to be a decent man of principle. Supports free speech too. A rarity among liberals these days. Used to be a lot of Daniel Patrick Moynahan – Hubert Humphrey types, both examples of decent men. Moynahan would certainly be called a “nazi” now for his statements on the black family back in the 60’s. As I have said on numerous occasions, JT is going to lose his liberal card and I doubt he is immune from the “nazi” label himself because today’s leftists tolerate little dissent.

    I find all of the high minded moralizing a bit humorous. Let’s be completely honest. Most leftists don’t really care if Kavanagh actually did any of the things he is accused of or not. They are much more concerned about how they think he might rule on the issues they care about.

    If Kavanagh were a leftist and conservatives presented accusations about misbehavior (credible or not), leftists would try find a way around it. Kind of like lefties always making excuses for that great protector of women named Edward Moore Kennedy. They could care less about Mary Jo, Chappaquiddick or his other activities. They simply liked his politics. Same with Martin Luther King. They agreed with his politics and could care less about the plagiarism, womanizing or sexually assault of women. Most of which were undisputed. No high mindedness for lefties concerning any of these folks.

    Kind of akin to coming to a conclusion and working backwards to justify it.

    Didn’t Comrade Lenin say something to the effect that to make an omelet, you have to break some eggs?

    antonio

          1. David Benson is the God Emperor of Making Stuff Up and owes me thirty-six citations (one from the OED, one from the town ordinances and two from the Old Testament), an equation and the source of a quotation, after forty-four weeks, and needs to cite all his work from now on. – David, you are the most boring commentor on here. I cannot believe that you would think antonio (who writes very fine posts) is boring. If you disagree then say so and prove him wrong. However, you have yet to present evidence to prove any of your points.

  4. Any impeachment would be long on lies, fakery, vileness, animus and ignorance …. and short on justice. The liberals and Democrats who are doing this will pay a price ,,,, maybe not in this world but in the next.

  5. I wonder what will happen when the President gets to fill another vacancy?
    Actually, I already know, and it is not good for the country.

  6. The Kavanaugh appointment to the Supreme Court should serve as a poster child of what’s wrong with our Federal Government! This mess is the very reason that the Constitution calls for a 2/3 Majority Consensus to Concur for appointments, especially a lifetime appointment. A 2/3 Majority Consensus insures that no appointment can be made on a partisan basis, especially since it is a 2/3 Majority Consensus of the States, because the States have Equal Suffrage in the Senate, Not The Individual Senators.

    For all those that are unsure what that means, then read Article 5 of the Constitution, and if you are still unsure, then read Federalist #’s 62 & 63 by Madison and #64 by Jay, and if you still need convincing then read #77 by Hamilton.

    So, who’s responsible for the breakdown of order in the Senate and allowed for the blocking of the appointment of Garland? Some people would say McConnell, but they would be wrong! The person responsible for the circus in the Senate that we call the appointment process is the President of the Senate, and at the time of the Garland Nomination that person was Vice President Joe Biden! When the President makes a decision to nominate, then a communication is forwarded the Senate directed to the President of the Senate, who is the Person of Authority in the Senate, Not a Party Majority Leader who leads a caucus not the Senate!

    And if you don’t understand what a caucus is, then let me inform you! A caucus is a Faction, just like the political parties that they are formed from, and factions have no representation or authority to participate in Congress in any capacity, much less control the Legislative Process, which includes appointments, and impeachments!

    So who today should be making sure that the Constitution is followed as written? The Chief Justice of the Supreme Court, John Roberts, who should be immediately impeached himself for failing to uphold his oath of office to preserve, protect, and defend the Constitution of the United States.

    So this isn’t a question of impeaching Kavanaugh, or even impeaching Trump, all must go, every elected and appointed person within our Federal Government, and the only way to accomplish this is for the States to Reestablish their Authority as the Union, then raze the entire Government and reassemble the Federal Government according to Articles, 1, 2, and 3 of the United States Constitution!

    We are too far off track to fix our Government at the Voting Booth, and in my opinion we need to wander in the desert for a generation, Governing through a transition Government of a committee of the States, one Representative per State, to cast off our dependence and ignorance associated with Our obsession with Party Governing!

  7. The Democrats couldn’t be more transparent; they are having a full-blown panic attack over:
    • The Mueller investigation findings.
    • Horrowitz’s investigation of FISA abuses.
    • Durham’s Russia investigation origins.
    • Huber’s investigation in the FBI and DOJ misconduct.
    • The strong likelihood that Trump and Barr will declassify everything to do with the above investigations.

    With all the above and with the mind-blowing radical leftward lurch of the Democrat party, the American people are going to be receiving information that will shock their reality. My guess is the 25% on either extreme won’t be shocked into a new reality. The middle 50% however will be keenly interested in seeing whether anyone is convicted and some semblance of the rule of law is restored. If that does happen, that 50% will look to clean house, leaning heavily towards moderate-conservative candidates for the foreseeable future. Even if that doesn’t happen, that 50% will still have been shocked and they will still be looking to clean house; but the percentage split is no certainty. It will have a huge ideological gap between them. This will be our house-divided moment.

    The most important point and why the Democrats, along with their media machine have lost their collective minds is:
    • President Trump has 2 conservative justices to SCOTUS with the very real possibility of another. 150 and counting judges nominated by him. And if this continues, it would be hardened, conservative shift in the judicial branch that will be a stake through the heart of progressivism for decades.

    So, there’s that.

    Grab some popcorn!

  8. Let’s focus on what reasonable, non-ideological folks with a modicum of critical thinking skills can all agree on:
    1. Brett Kavanaugh the teenager was part of the binge-drinking-partying sub-culture that remains a part of American youth today.
    2. Brett’s high school friend Mark Judge chronicles the partying scene in “Wasted: Tales of a Gen X Drunk”. He regales an incident when his friend “Bart” was drunk to the point of barfing.
    3. Kav attended Yale contemporaneously with Max Stier and Debbie Ramirez.
    4. Kav attended binge-drinking parties in his underclassman years. There is corroboration of the college binge-drinking.
    5. People’s memories of what transpired at these parties are fogged by alcohol memory deficit and the passage of 35 years.

    Putting aside political motives, if Dems and Repubs cared about youth, they would join in bipartisan words of caution to youth about binge-drinking. “When you drink to stupor drunk, behavior may come out that you would be totally ashamed of when you return to being sober”. “You may act out in ways that are illegal – criminal”. “If you are victimized by criminal misbehavior, you will not be able to serve as a credible witness”.

    I’ve given up on Democrats being able to respect the limits of civility in political competition. Now, it’s all out ad-hominem warfare, using the legal system as a weapon. That’s not a way to keep our republic, it’s a way to destroy it.

    1. Amusing how Kavanaugh detractors pose as old-school Methodists.

      Mark Judge is an admitted alcoholic who, although he’s done some interesting things over the years, has failed to build a professional or domestic life. That does not describe Brett Kavanaugh. One man’s drinking was not like the other’s.

  9. Now why do you suppose all of those alleged witnesses who were never interviewed have not been beating down the doors at the FBI to tell their story? Could it be that they know that if you lie to the FBI you end up behind bars>?

    As for you, JT — how about this for a NYT story: a Gw student says you took her hand an placed it on your crotch. She doesn’t remember exactly where it happened. She doesn’t remember when it happened. And the four people she says were present and saw you do it all say they have no idea what your accuser is talking about and deny seeing or hearing anything. Go ahead…….defend yourself.

  10. Just like Kavanaugh! He doesn’t belong on SCOTUS but the GOP won’t support an impeachment and Trump would just appoint someone worse…yes worse.

  11. NO! NO! NO! NO! One more time, it is NOT a NEW allegation. It is a rehash of an old smear:

    “This latest story was penned by two Times fake reporters who have a new book out. Oh, joy! The book rehashes old accusations against Kavanaugh brought forward and rejected as baseless last year, while pretending to add new meat to the bone to one accuser who supposedly claimed that Kavanaugh exposed himself to her at a party. The fake authors claim in the book to have found 7 “witnesses” who supposedly remember the incident.

    Big problem: Not a single one of those seven “witnesses” make any claim to have actually witnessed anything. Only one of them was actually at the party in question and has no specific memory of Kavanaugh being involved in any exposing of anything other than a beer cup. None of the other six were even at the party. Oh.

    The fake reporters naturally saved those bits of key information for very late in the book and made no mention of them in the story they penned for the oh-so accommodating pages of their employer’s fake newspaper. But actual journalists at other media outlets, including Mollie Hemingway at The Federalist, exposed all of this and much more over the weekend, creating a huge blowback towards the Times and its fake reporters and forcing the Times to issue a correction to the story.

    This smear effort was so transparent and corrupt that it even had Brit Hume, who has stubbornly avoided calling his colleagues corrupt all these years, finally giving in to unavoidable reality:

    Brit Hume ✔ @brithume This smear was disgusting the first time around. This attempt to revive it is beyond disgusting and speaks to the dishonesty of leading organs of the mainstream media. They are corrupt. https://spectator.us/brett-kavanaugh-debbie-ramirez-character/

    A fresh assassination of Brett Kavanaugh’s character | Spectator USA God bless Brett Kavanaugh. And shame, shame on The New York Times and its sweaty minions for abetting the revival of this grotesque calumny.”

    https://dbdailyupdate.com/index.php/2019/09/17/cbs-exposes-a-corrupt-new-york-times-smear/

    The reason this is important, is that it makes what the NYT did even more egregious.

    Squeeky Fromm
    Girl Reporter

  12. One reason Kavanaugh is such a lightning rod is that beyond his particular conservatism he represents the prototype of the white privileged frat boy so not representative of most Americans

    1. One reason Kavanaugh is such a lightning rod is that beyond his particular conservatism he represents the prototype of the white privileged frat boy so not representative of most Americans

      It isn’t Kavanaugh’s fault that you’re stupid and malicious, Martha.

      Kavanaugh’s ‘privilege’, Martha, is that he was raised in an orderly milieu.

      Had his parents not been able to finance Georgetown Prep and Yale, he could have attended Bethesda Chevy Chase High School, the University of Maryland at College Park, and the University of Maryland’s Law School. There are some rarefied circles to which he would not have had entree, but he’d have done all right. The person you deride as a ‘frat boy’ completed all of his schooling without a hitch in demanding milieux and prospered in a series of positions where you have to know your onions.

  13. It’s amazing what partisan Democrats invest in emotionally. You’re not really dealing with normal adults when you’re trying to converse with them.

  14. The facts don’t matter when the Party ignoring them doesn’t have much for which it stands. Techniques of distraction work on the masses.

    1. And you stand for segregation.

      For some reason JT attracts neo-Nazis and racist like flies. This is not a normal group of concerned citizens.

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