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  • Max Stearns

Legitimate versus Illegitimate Falsehoods Concerning the Kavanaugh-Blasey Matter

My social media feed and much news commentary have been filled with utterly confident, yet profoundly mistaken, claims concerning what we can now call the Kavanaugh-Blasey matter. I have come to realize that some falsehoods might be advanced in good faith, based on legitimate misunderstandings. This is true even if the misstatements tend to support the partisan views of those advancing them. Other mistaken claims, however, are not in good faith. In what is now my third post on the topic (here are the first and second), I will explain the distinction and offer some clarifications.

Some claim that the FBI does not investigate alleged activities that form the basis for state and local crimes, especially those from decades ago. Based on this assertion, commentators further maintain that the FBI lacks jurisdiction over the allegations made by Christine Blasey Ford, who goes by Dr. Blasey, against Judge Brett Kavanaugh for an allegation of attempted rape from thirty-five years ago, when she was fifteen and he was seventeen. President Donald Trump has lent support to this view by falsely claiming that this is not what the FBI does. There are three mistakes embedded in these claims: (1) what we are dealing with is equivalent to a criminal investigation; (2) the FBI does not investigate state and local offenses for any purpose; and (3) for those matters that the FBI does investigate, the relevant criminal statute of limitations prevents investigating this thirty-five year old, and thus legally stale, claim. Again, a person can embrace any or all of these three mistaken claims in good faith. But each of these claims is false.

This is not a criminal investigation. The investigation, instead, relates to Judge Brett Kavanaugh’s fitness and character to serve on the nation’s highest court. Those advancing the preceding claims fail to appreciate that the FBI performs two essential, yet separate, investigatory functions, and each operates differently. Yes, the FBI investigates federal crimes. And the FBI also separately investigates the backgrounds of those who are appointed to federal offices. In the latter function, the one at issue here, the question of fitness and character goes well beyond matters strictly related to potential federal crimes. Quite often, it includes matters related to potential, or actual, state or local offenses, even civil matters or simply problematic conduct, that reflect on fitness or character. The FBI's role in investigating Anita Hill's allegations against now-Justice Thomas is illustrative. This aspect of the FBI's investigative function for federal appointees arises because the vast bulk of substantive criminal law is handled at the state and local level, not the federal level. Despite that, such activity reflects directly on personal character and fitness for federal office. For the same reason, the statutes of limitations for related activity that would potentially constitute a crime do not limit the scope of the FBI’s jurisdictional authority in investigating such matter as they relates both to fitness and character. This is especially true where, as here, one indication of fitness and character is ongoing statements that the events never occurred. These present day statements, if they are lies, which we do not know, relate directly to present fitness and character to serve on the nation's highest court, or frankly, for any federal office.

I have pointed this all out, now more than once, to those claiming that the FBI has no role to play here. I have even managed to persuade some who were initially skeptical, even staunchly opposed, based on partisan views. I am pleased to be able to say that.

Far more troubling are claims about how a potential victim—assuming the allegations are true, which, again, we do not know—should respond to a sexual assault. The most damning claim in my view was expressed by conservative commentator, Dennis Prager, who stated that the young Ms. Ford's reaction and subsequent experiences are, at most, emblematic of what he deems the feminist-induced weakness of modern women, who, in his assessment, should be able to handle even an offensive sexual pass. This is despicable. And for two reasons. First, women, and girls, who are subject to inappropriate touching by men and boys may be rightly offended, even outraged, but are not likely to suffer what Dr. Blasey claims to have suffered, which appears close to the symptoms associated with post-traumatic stress disorder, or PTSD. The duration of the attack is not the the issue. Contrary to Prager, the possibility of hands touching her clothed body parts might be far less relevant than a hand covering her mouth or turning up the music volume to avoid detection. What makes trauma tramatic is not knowing if, how, or when it will end. If, at the time of the alleged attack, the young Ms. Ford truly believed that she was about to be raped, and perhaps killed, this has no resemblance whatsoever to Prager’s account of his mother reporting to his father having been groped by a physician, or of his wife, as a teen, putting down yet another groping man. Far from it. A person who has not experienced the sort of incident Dr. Blasey describes has no right claiming to judge the emotional toll the incident should have taken or how, especially as a fifteen year old girl, she should have responded. That includes Donald Trump claiming that if it were all that bad, the young Ms. Ford, or her parents, would have brought it to the authorities. Contrary to Prager, this has nothing whatsoever to do with the feminism. It does have to do with decency. And because the fifteen year old Ms. Ford went on to hold her secret for years, even decades, her parents could not possibly have made that report.

Of course, I do not know if Dr. Blasey’s allegations are true. I have repeated that in each of my three related posts, and I mean it. It is possible that the facts are as she reports them and that, despite this, Judge Kavanaugh has no recollection. It is possible that the events occurred in ways that do not precisely fit her description or that they did not occur at all. I don’t know, but what I do know is that this is why an FBI investigation matters, and should mattered especially to Judge Kavanaugh. He, more than anyone, should seek to encourage whatever allows him to clear his good name.

As for the rest of us, the best advice I can provide is to suspend judgment. These are two highly accomplished individuals. What is needed is a delicate and vital process. It is helpful to understand how that process should proceed.

I welcome your comments.

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