So New York Times columnist Ross Douthat thinks that “Only the Truth Can Save Us Now.”
If truth is our only salvation, we’re lost. Douthat urged the Senate Judiciary Committee to subpoena key figures he thought could shed light on the sexual assault that Christine Blasey Ford said Supreme Court nominee Brett Kavanaugh committed against her thirty-six years ago.
Though it had the advantage of compelling the testimony of the witnesses whose accounts the Committee thought would be most revealing, I can understand why the majority declined to go there. Witnesses testifying involuntarily are going to show up with a phalanx of lawyers and will do everything they can to make themselves as nearly invisible as possible. Their testimony is likely to be only the lawyer-scrubbed version of the truth, “nothing but the truth” perhaps, but not “the whole truth, so help you God.”
I have no more confidence in the FBI “investigation” bone that Republican members of the Committee tossed to their Democratic colleagues after voting Kavanaugh’s nomination out of committee.
With one exception that I’ll get to shortly, I have only newspaper knowledge about this sort of thing. From my little corner of the world, I gather that FBI investigations come in two flavors: background and criminal.
What’s on tap before the full Senate votes on Kavanaugh’s nomination is a background investigation limited in both scope and duration. This is the kind of investigation I have a thimble’s worth of personal experience with.
Many years ago, I was visited by two FBI agents who were conducting a background investigation of a recently graduated student of mine who’d applied to join the Bureau. Thinking back on the meeting, it’s funny now because these guys were straight out of Central Casting: wouldn’t-stand-out-in-a-crowd-of-three types in rumpled suits and trench coats (I swear). They showed me their badges and got down to business.
As a preliminary, they explained how they went about backgrounders, interviewing a range of people who knew my ex-student—family, neighbors, teachers, employers, pastors, etc. They said they were looking for red flags, anything that might suggest her unfitness for the FBI.
Their questions included, as far as I can remember, how long I’d known the applicant, whether I had any indication of health issues (I did), regarded her as stable and trustworthy, ever observed anything that cast doubt on her loyalty to the United States, etc. They were very businesslike, got the information they came for, thanked me and left.
The backgrounder the FBI is conducting about Kavanaugh’s high school days is orders of magnitude more searching than what I remember. But with enough red flags to dim the sun already out there, I’m not looking for it to deliver any saving truths. It’s already been condemned by some as a “farce.” And while former FBI Director James Comey, writing in the New York Times, assures us that the men and women at the Bureau will give it their best shot, he says the time constraints imposed are “idiotic,” degrading the process to the level of “better than…no professional investigation at all.”
The most glaring obstacle to the saving truth that Douthat and the rest of us want is that nobody has to talk to the FBI in this kind of investigation. I didn’t have to talk to the agents who paid me a visit. Whoever agrees to talk to them can’t lie to them without exposing themselves to serious legal jeopardy. But what we can expect is that for the most part, the people who’ll agree to sit for interviews will be self-selected members of Team Ford on one side and self-selected members of Team Kavanaugh on the other, leaving us about where we are now.
Casting a further pall over this investigation is that the first stop on the custody path for the completed FBI report is the White House, in the hands of someone who’s never been on friendly terms with the truth.
Well, what about a criminal investigation whose results would go straight to professional prosecutors? After all, Kavanaugh’s nemesis accused him of attempted rape. But according to the Washington Post, that’s not in the cards. The assault is alleged to have occurred in Maryland in 1982 when the statute of limitations under state law was one year. So that door closed decades ago.
But wait a second, someone might protest. Surely it would be worthwhile for the FBI to carry out its investigation as if it were a criminal inquiry even if no prosecution could follow.
The Twitterverse is crawling with people who’re all in on that approach. But it would run roughshod over basic standards of due process. When criminal investigations accumulate enough evidence to warrant prosecution, that doesn’t establish “the truth,” saving or otherwise. To get as close to the truth as fallible human beings can, a charge has to be brought and a trial held in which prosecution and defense make their cases, constrained by procedures specifically framed to ferret out the truth, beyond a reasonable doubt, and enforced by an impartial judge. And if the defendant is convicted, we’re still not at the end of the truth-seeking process until all appeals have been exhausted.
You may recall that Comey’s Boy Scout reputation got dinged when he appeared to render a verdict in the Hillary Clinton email criminal investigation that it wasn’t up to him to hand down. I’m guessing that the Bureau isn’t eager to revisit that scenario now.
All of these niceties aside, they pale next to the excruciating bind we’re in. We’re looking at a choice between perhaps elevating to the highest court in the land someone guilty of conduct that would be illegal in every jurisdiction in the country or of giving anybody with merely “believable” allegations a veto over aspirants for high office.
The late Sen. Robert Byrd (D-West Virginia) said during the confirmation hearing for Justice Clarence Thomas that when in doubt, we should always give the Court and the country the benefit of it. That’s an appealing principle when cases like the one we’re mired in now are the rare exception. But if they become the new normal, the Byrd principle could deny the country the services of more able candidates than we can afford to lose.
Longtime Supreme Court observer Marcia Coyle reported recently on the PBS News Hour that the current members of the Court know Brett Kavanaugh and hold him in high regard. That’s a pretty good recommendation. But his nomination is so toxic now that it may be too late for any “saving truth.” If I had any sway over Judge Kavanaugh, I’d beg him, for the sake of upholding the high regard in which some of us still hold the Supreme Court, to fall on his sword and withdraw from consideration.
Meanwhile, I never thought I’d be tempted by the late Justice Antonin Scalia’s view that the way to preserve public confidence in the Supreme Court is to reduce its footprint in American political life in deference to the electoral branches. But that’s a vast topic for another time.
Image: Animation of Judge Kavanaugh morphs from a student at Yale to a SCOTUS candidate created by LikeTheDew.com from fair use sources including Wikimedia.org.