On this week’s Political Gabfest, David Plotz and Emily Bazelon are joined by David French, senior fellow at the National Review Institute, to discuss the sexual assault allegations made by Christine Blasey Ford against Supreme Court nominee Brett Kavanaugh. A transcript of this conversation, which has been edited and condensed for clarity, is below.
David Plotz: Should Christine Blasey Ford testify on Monday?
Emily Bazelon: I think the request for an investigation is a completely reasonable one and makes sense if you’re trying to ascertain the truth of these accusations. That’s what investigators do: They look into surrounding circumstances and look for corroborating evidence. This accusation is about something that took place 36 years ago, and it’s possible that people aren’t going to remember whether this party happened, when it was, etc. But at least one would want to allow investigators a chance to try to sort that out, especially because Kavanaugh has said that he wasn’t at this party. And that seems like something that it’s possible to at least find out more about.
So I understand why Blasey’s asking for the investigation. I think Republicans are going to refuse to do it, which seems to clearly be their position—none of the Republican senators who asked for the hearing, meaning Flake and Corker and Collins and Murkowski, are demanding an investigation. I think the Republicans have decided that the politics don’t force them to do one.
And in that case, I think that if Blasey wants to try to have an effect on this confirmation, then she has to testify on Monday. Whether she decides to do that or not, that’s her personal decision. I’m not going to tell her to do, but I think that’s sort of how the politics have landed at the moment.
Plotz: Do you think this merits an FBI investigation before any Senate Judiciary Committee testimony? Or do you think that the testimony should go ahead with the two of them?
David French: No, I don’t think it merits an FBI investigation. Let’s be clear about what we’re talking about here. We’re talking about investigating what would have been a violation of state criminal law more than 30 years ago, something that the FBI doesn’t investigate.
Now, when we’re talking about investigation, people keep acting as if the FBI is the only entity that can investigate. No, the Senate committee itself can investigate. The Senate committee staff, both majority staff and minority staff, can investigate. A plaintiff can investigate. A plaintiff’s attorney can investigate. There are many different avenues of investigation here.
One thing I think is pretty clear, and from what I’m hearing, is I do not believe that Republicans senators are sitting there going, “I can’t wait for her testify in front of us so that we can destroy her on national television.” Many of them view her testifying on national television as an extremely high-risk endeavor for the nominee and for the GOP. There is a view that if she comes, and she testifies in public, and she’s very compelling, that this could absolutely sink the nomination.
But at the same time, they also know you cannot possibly vote on this nominee without offering this testimony. So I think they are going to continue to offer up right up until the deadline, and at the same time, you would hope that these committee staffs are busy doing their jobs investigating this all the while.
Bazelon: Maybe I’m a little confused about your position. Because a couple weeks ago, you were saying, “If there were only four boys there, where are the other two? Let’s hear from them. In fact, investigators should interview everyone else at the party.” So are you saying that the FBI should not investigate, but somebody should? Or that the hearing should just go ahead on Monday without an investigation?
French: No, I’m saying an investigation should be conducted by the relevant committee. If you’re going to say, “There should be an investigation, and only the FBI should investigate,” when this is not in the FBI’s standard operating procedure, I think that’s a problem. But it is absolutely within the purview of these committees to do these kinds of investigations, and from what I understand, at least the majority staff has been doing these investigations, has talked to Kavanaugh under penalty of felony, has received correspondence from at least two of the other people who were allegedly at the party who say they don’t remember a party like this. So there is something going on behind the scenes that is not highly visible to us, and the FBI, typically, doesn’t investigate alleged violations of state laws.
Bazelon: But in this context, the FBI does background checks of every Supreme Court nominee and did investigate Anita Hill’s allegations about Clarence Thomas. In fact, according to the White House at the time, they were unfounded.
I’m a little confused. If Kavanaugh is innocent, I would think he would welcome an investigation to clear his name. So that part of it puzzles me, but I also think from Blasey Ford’s point of view, the Republican majority on the Senate Judiciary Committee is not a neutral source of investigation. Some of the senators have already said that they believe Kavanaugh. I think what she is asking for here is to have some neutral fact-finders.
French: But you also have the minority staff empowered to investigate as well.
Bazelon: But those are both of the entity, the majority and minority parts of the committee. And what Blasey Ford is asking for is a neutral investigator, and that seems to me to be different from just saying, “Oh, a particular entity, the FBI.”
Plotz: The Senate is holding a hearing to decide whether they want to confirm him for the Supreme Court. This isn’t a criminal investigation. This is not an attempt to open a criminal investigation against him. It’s a process designed to decide on confirmation. And I feel like if the Senate rules as set by the majority of senators are, Here’s how we’re going to do it, even if they’re tinged with partisan bias, why not just go ahead with this? She can make her point as she testifies: Here’s why this is an inadequate investigation. And here’s what should be looked into. But I don’t know that she’s necessarily entitled to this kind of investigation.
Bazelon: I don’t know what the word entitled in that sentences means. And I also feel like I’m repeating myself. But if you really want to try find out the facts here, as David French wrote a week or two ago, you would investigate. And the idea of having a neutral investigative body that more people might trust their findings seems totally sensible to me.
We already have a situation in which people are lining up on one side of believe him or believe her with a lot of partisan bias informing their choices about that matter. So if there is some hope here of finding out other facts that could help people see this in a more neutral way, that would seem important to me.
One other related question I have about this is the decision to only call two witnesses when there’s a third person, Mark Judge, who according to Blasey Ford was in the room, and who is someone who supports Kavanaugh’s version of events. It just seems to me the decision not to call Judge has everything to do with Judge’s character and the fact that he wrote two memoirs about his alcoholism and blackout drinking. And if they call Judge, they’re going to say to him, Hey, there was a character in your book who you called Bart O’Kavanaugh, who you talked about puking and passing out from alcohol. Is that Brett Kavanaugh?
The Republicans don’t want that guy testifying in front of the American people. But again, if you were really trying to ascertain the truth here and figure out who’s credible and whose stories hold up, of course you would call that third person. And anyone else you could find who was supposed to be at that party.
Plotz: Why do you think Judge, in particular, shouldn’t be called on Monday, if you do think that?
French: I don’t think that. I think that if you can identify people who were allegedly at that party they should be called, and they should testify. I look at this in a way that is very similar to the process of civil litigation because there’s no prospect of prosecuting a crime here. That ship sailed a long time ago. And in the process of civil litigation, a person comes forward with an accusation and then bears a burden of proof. And the burden of proof I articulated in an article when all this just first broke on Sunday was the lowest burden of proof possible in court. And that is preponderance of the evidence or more likely than not.
Because I don’t want to have a Supreme Court justice sitting on the Supreme Court if it is more likely than not that they committed this heinous of a sexual assault even when they were a teenager. If it’s more likely than not that they did this, I don’t want them on the Supreme Court. In the same way with Roy Moore, I was utterly opposed to his election in Alabama because I thought it was more likely than not that he had abused underage young teenagers when he was a prosecutor in Alabama. The same reason I did not want Trump in—well, for many reasons I did not want Trump in the White House. One is I thought it’s more likely than not he was a sexual abuser, the same for Bill Clinton. That’s the standard, which I think is a fair standard, is that we don’t want someone in that office when it’s more likely than not that they did this.
Well, then how do you go about establishing that? I tend to believe that the accuser, the person who comes forward with the accusation, bears the burden of proving at least that it’s more likely than not that it occurred. And one thing that troubles me that as of right now: The only people who have said anything under penalty of felony so far about this are Kavanaugh and two of the other people who were allegedly at the party. And the accuser, to this moment, has still not said anything under oath or under any penalty of felony. In a court of law that accusation would be tossed out unless the person was willing to state their case under penalty of perjury.
So the staff should investigate the heck out of this thing between now and a hearing, and then they should call relevant witnesses. And if the majority doesn’t want to call relevant witnesses, then I’d say shame on them. But that is what we require of people all over this country in very, very difficult circumstances when a claim is made is to come in, put their hand in the air, swear to tell the whole truth and nothing but truth, and then make their case subject to cross-examination. That’s the way this works.
Plotz: Emily, do you think if we end up with simply the two of them testifying on Monday—and maybe, as David French says, there will be a background investigation so that at least the senators will come armed with material to ask questions about—and we have one person who makes a claim, and she is credible, and we have another person who denies that claim, and he is credible, what are we left with at that point?
Bazelon: I’m not sure because we haven’t heard the testimony. And I agree with David French that it’s entirely possible—and in my view, likely—that Blasey Ford is going to be a compelling and sympathetic teller of her story, and that could have a real impact, but we have to wait and see how it plays out.
For me, some of the arguments people have made about why Blasey Ford doesn’t seem credible to them are not arguments that hold up to me. One of the arguments—I think, David French, you’ve made this argument—that because she waited so long to come forward, it makes it harder to prove. But to me, it doesn’t at all make it clear that she’s not telling the truth.
Caitlin Flanagan did an amazing job on The Daily this week for the New York Times and in the Atlantic talking about a sexual assault she experienced that she didn’t tell anyone about. I had an experience of sexual assault in high school in the ’80s. I didn’t tell anyone. For a long time, we just didn’t do that. I felt way too much shame and responsibility to talk about it. It just seems like something that was my fault. But I know it happened to me.
And I have the same response hearing President Trump and others suggest that maybe she mixed up Kavanaugh’s identity, because I would never be mixed up about the person who did that to me. So I find those efforts to undermine her story really hard to listen to.
Plotz: Do you guys think that the peripheral evidence about Kavanaugh’s teenage years, his own joking about what happens at Georgetown Prep stays at Georgetown Prep, the hints, and the Mark Judge memoir about Kavanaugh, do you think that’s going to come up? Is it relevant? Do senators need to consider that?
French: I think whether or not he drank to excess on occasion in high school is—let me put it this way: If he said, “Look, there’s no way I could have done this because I was stone-cold sober all of the time, and remember with clarity where I was and what I did,” and then there was evidence, “No, in fact, you drank too much on occasion,” at some point, it gets very, very difficult to say evidence that he drank too much on occasion equals evidence that he committed a serious act of sexual assault.
One of the problems that we have here, I think, is when you lack a lot of evidence, one way or the other, we begin to fill in the void with our own experience. And I think that’s one of the reasons why some of the articles—for example, Caitlin’s article that you referenced earlier—have been so, so powerful for so many people because it resonates so much with their own experiences.
In the absence of a whole lot of evidence to really sit there and weigh and carefully consider, you begin to import your experience in these things. And I think that’s just a very human thing that we all do, but it’s a thing that we do in the absence of evidence. And when that occurs, it ramps up what’s already an intense, emotional, high-stakes confirmation battle, political battle, and it becomes something else entirely. It becomes a big cultural moment. And we’ve seen this many, many times.
And so, no, I don’t say that there’s a lack of contemporary corroborating evidence means that she’s lying. I’m saying, more from a legal standpoint, that it is a lack of additional evidence that is of consequence if you were going to be making this case in court, and that’s where I’m going with that.
Bazelon: Making this into a cultural moment sounds like it’s very mushy and being propelled by a few individual anecdotal narratives, so I want to bring in this smart article by Sandra Newman in Quartz about the relative rarity of false rape accusations, which is something that I’ve also written about. It’s a really low rate of women—or anyone, men too, whoever—who come into police stations and report a rape falsely, and we’ve known that for a while. But added to this picture, which I thought was really valuable, is that when people do make false accusations, they usually have a history of fraud or mental illness, or sometimes there’s a clear motivation of revenge, something that allows the facts to unravel pretty quickly and shows that there is some external motivation behind the false claim. And also usually the false claims are really florid. They’re highly dramatic accounts of rape, like the claim that the UVA student made in the Rolling Stone piece that fell apart, which we’ve talked a lot about on this show.
People rarely makes claims of things that could be mistaken for consent, and that’s the kind of claim Blasey Ford is making here. So I think that’s an important set of not just a few anecdotal narratives, but some data to add to this picture that to me balance against this notion that Blasey Ford isn’t telling the truth.
French: There’s one problem with those studies: Our legal system does not adjudicate for falsity. If a jury acquits, for example, a rape defendant, they adjudicate the claim to be false. They say that the burden of proof wasn’t met. If a prosecutor declines to proceed with a case, or if a judge grants a summary judgment motion in a sexual harassment case, a civil sexual assault–type case, there’s not an adjudication of falseness. There’s a failure to meet—or a believed failure to meet—a burden of proof.
So all of these studies that say, X percent are false, there’s a methodological problem there because that’s not what our system adjudicates for. You can have a situation, and this happens all the time, where a person isn’t a false accuser, in other words, they’re not deliberately making a false claim, but they’re making a claim that is insufficient to meet the burden of proof sometimes for reasons due to their own memory, sometimes for reasons due to conflicting evidence, sometimes for many reasons.
I don’t think outside of the fever swamps on the right, I haven’t seen too many people sitting here saying that Ford is maliciously sitting back there and making all this up. What I am seeing is more people saying that based on the totality of the evidence, it appears that she might be mistaken about one or more elements.
Bazelon: You were talking before about a situation of proving rape beyond a reasonable doubt. And it is absolutely true that rape is a famously hard charge to prove. But the notion that then one moved there to the idea that there is some large number of false rape accusations out there, we just don’t have any evidence for that. It’s just like canard.
When you say that you think that Blasey Ford could be mistaken—that’s a very delicate way of putting it—what do you think she’s mistaken about?
French: She could be mistaken about identity of the attacker. She could be mistaken about the exact circumstances of the things that happened in the room. She could be mistaken about the amount of alcohol that various people, including herself, consumed.
One of the things that’s really interesting about memory is that—and this is a hard truth for people to understand because nobody doubts their own memory—if you say to somebody, “The thing that you remember is one of the most important things in your life, you could be remembering that incorrectly,” people get really upset about that. And they say, “That’s just not possible.” But everything that we know about memory says not only is that possible, but that is frequently the case. Frequently. Now, it doesn’t mean that this 30-year-old memory that I have seared in my mind is false. It’s just that I can’t be sure that this 30-year-old memory that is seared in my mind is true.
When I was a young lawyer, I used to have this view of the law, so naïve, that was here’s one side that’s telling the truth, and here’s one side that’s telling a lie. And I always want to be on the side that’s telling the truth. What I began to see is on these really, really important things in peoples’ lives, I would see people believing with their whole heart that their story was right. And then sometimes reacting with extreme shock when confronted with contrary evidence.
And so there’s actually a really interesting Malcolm Gladwell podcast recently, Revisionist History, that used the Brian Williams controversy to tee off on some of these aspects of our memories. And so that’s why when people say we need corroboration, we need corroboration, you’re not saying, “You liar.” You’re saying these things get hazy and our minds play tricks on us, and the more that we can have that can give us assurance that this 30-year-old memory is accurate, the better off we’ll be.
Bazelon: Before we close, there’s an article in the New York Times by Richard Friedman, who is a psychiatrist, and he is pointing out in a way that I think has a very different emphasis than your rendition, David French: that when people experience intense emotion, that that can actually make memories more powerful and lasting. And one of the really important distinctions that Friedman is making here is between recovered memory, where a memory completely goes away and then supposedly returns—there’s a lot of reason to doubt situations like that—and a memory that’s there all along, that someone has tried to repress but can’t get rid of, which is very much what happened to Blasey Ford. It’s what happened to me. It’s what happened to Caitlin Flanagan. You can dismiss that as a few anecdotes if you want, but I think there are a lot of other people out there who have experienced sexual assault, a lot of women, who are in that category.
And to me all of those things, not to mention the sort of culture of silence of the ’80s, weighs much more heavily than the kind of doubt that you are trying to sow here. Though I realize that for Republicans, it’s really useful to try to sow that kind of doubt right now.