Kavanaugh: follow the money – and the Russia scandal
27 September 2018 18:49
The unedifying spectacle of the confirmation of federal court judge Brett Kavanaugh to the Supreme Court has kept us all fascinated this week. It has managed to unsettle a uniquely divided country even more deeply; Republicans, many of whom only voted for Donald Trump in order to ensure they got the kinds of judges they wanted on the Supreme Court, face the prospect of Kavanaugh either withdrawing, or being defeated in a confirmation vote.
Meanwhile, the Democrats fear that – despite an array of allegations, established or otherwise – Kavanaugh will indeed be confirmed. The consequence would be an implacable enemy sitting on the highest court in the land. They further believe that Kavanaugh is not only their ideological opponent, but also absolutely corrupt.
It is not true to say that Mr. Kavanaugh is in no criminal jeopardy. While any federal statute of limitations may have run out long ago concerning the allegations made against him, his first and most substantial accuser, Professor Christine Ford, alleges that a crime of attempted rape was committed against her in the state of Maryland – a state that does not recognise any limitations for this crime.
Indeed, this specific legal reality may lie behind Kavanaugh’s refusal to withdraw his name. Were he effectively to admit that he had committed the act of which Prof. Ford accuses him, he would be entering a presumptive guilty plea for a crime for which he could be subsequently prosecuted at state level.
Be that as it may, the accusations against Kavanaugh represent important points of principle for both sides. For Republicans – and not only Republicans – the #MeToo movement is fundamentally unjust. While I have personally sided with the Democrats in most matters since President Trump’s election, I, for one, find #MeToo obnoxious and unconstitutional.
It attempts to deprive Americans of due process, by demanding that the public accept any allegation of rape or sexual assault made by any woman as factual. In this case, Republicans feel that this weaponised hysteria, as they see it, is being used to deprive them of the Supreme Court seat which is theirs by right after the election of a Republican president. And in the case of Judge Kavanaugh, some of the allegations levelled against him are far more convincing than others.
Democrats rightly observe that Mr. Kavanaugh is not entitled to ‘due process’ – a formal legal term – as he is not on trial. Senate confirmation is a job interview. It is less akin to criminal proceedings than an application to be a bank manager – the human resources department going through your social media history, and asking you impertinent questions about parties you held when you were 18.
All the same, many Democratic elected representatives are uneasy. They realise that, sooner or later, there will be a Democrat in the White House, and they fear that his or her nominees will be subjected to a similar three-ring circus. It tends to be the case that the longer a Democrat has sat in the House or the Senate, the more misgivings they are likely to feel about a temporary victory over Kavanaugh at the cost of long-term constitutional stability.
These are dark times on Capitol Hill. Ultimately, Trump cannot be prevented, less than half way through his first term in office, from filling the vacancy on the Supreme Court left by Justice Anthony Kennedy with a nominee of his own. One might ask, therefore, why both sides, in Mafia parlance, are ‘going to the mattresses‘ over this case.
Judge Kavanaugh has been undoubtedly been involved in uncontested scandals that have nothing to do with Thursday’s testimony by Professor Ford. How, for a start, can Republicans, traditionally the party of sound fiscal management and competence, be comfortable with putting a man onto the Supreme Court who, by his own admission, racked up more than $200,000 in credit card debt?
There are enormous holes in his account of his finances. His excuses literally do not add up. He has claimed that he renovated his house; but running up extensive credit card debt on a house renovation is a mark of irresponsibility. Nor has Mr. Kavanaugh provided copies of the necessary permits, or any receipts. Since these debts were apparently reached on credit cards, such documentation ought to be easy to provide. An incurious mainstream media has also failed to ask about gifts made to his family members – financial gifts which, as he defiantly states in one of his letters to Congress, he is not obliged to declare.
Lest I be accused of coyness, let me state plainly what is at stake here: Democrats and their allies suspect that Judge Kavanaugh, who admits to having a propensity for gambling, ran up major debts, which were then paid off by allies of Mr. Trump, in order to buy his loyalty and silence on the Supreme Court.
Even if that is not the case, it remains true that the sheer scale of his credit card debt – as much as Judge Kavanaugh earned ex officio in a single year as a federal judge – suggests that this prospective Supreme Court justice might be wide open to blackmail. That should not be acceptable to any responsible lawmaker, Republican or Democrat. Prof. Ford’s testimony on Thursday was compelling, but it is by no means the only, or the most important, cloud that hangs over this nomination.
It is unlikely that the Senate confirmation process will prove or disprove the allegation of attempted rape against Mr. Kavanaugh one way or the other. Why, then, does Trump not simply pull the nominee and replace him?
I believe that the answer to this is not connected to the accusations of sexual battery levelled against Judge Kavanaugh, or his defence against them. In Wednesday’s hearing, there was one electrifying moment; Senator Kamala Harris asked Kavanaugh if he had ever had a conversation with anyone working at Kasowitz Benson Torres – the firm founded by Marc Kasowitz, Trump’s personal attorney – about special counsel Robert Mueller, and about Mueller’s inquiries into the Trump team’s alleged collusion with Russia.
Let us pause for a moment to examine the implications of that question. Kavanaugh may not yet be on the Supreme Court but he is, nonetheless, a senior federal judge. It is a matter of high principle that judges should not compromise themselves on matters that they may subsequently be expected to consider.
The Russia inquiry has already spawned diverse prosecutions in diverse areas of the law. Democrats did not pursue Harris’s question at the time – but they should have. Why had a federal judge allegedly discussed Mueller’s actions with somebody at this firm? A firm founded by an attorney representing a man whose presidential campaign is at the heart of that prosecutor’s case?
Kavanaugh was clearly taken aback by the question. Senator Harris, a former state prosecutor in California, knows how to make a witness squirm, and Kavanaugh delighted watching Democrats by flushing beet-red and attempting, in a protracted series of responses, to wriggle out of a truthful reply.
This exchange alone – and Kavanaugh’s conspicuous failure to deny that he had discussed the Russia investigation with an unnamed individual at the firm of Trump‘s own attorney – should have been enough to disqualify him. But Democrats, having fatally wounded the quarry, neglected to deliver the coup de grace.
At a minimum, they should have demanded phone records between Kasowitz’s law firm, its partners, and Kavanaugh – to the extent that they exist. Democrats should also have been out on the airwaves, morning, noon, and night, demanding that Kavanaugh, if confirmed to the Supreme Court, recuse himself from any and all matters relating to the Russia inquiry and prosecutions arising from it. It would be very difficult for Kavanaugh to refuse such a demand for recusal.
Which prompts a devious question. Why derail his confirmation at all? In truth, having Kavanaugh on the Supreme Court, yet unable to rule on any matter related to Russia, would be the best possible outcome for Democrats – and the worst for Trump.