Jurisprudence

Is Ed Whelan’s Conspiracy the Best the GOP Has?

Brett Kavanaugh’s nomination is in dire straits.

Ed Whelan
Ed Whelan.
Photo illustration by Slate. Photo by Reuters/Yuri Gripas.

On Thursday, conservative legal analyst Ed Whelan unleashed a disastrous Twitter thread seemingly designed to exonerate Supreme Court nominee Brett Kavanaugh of charges that he committed sexual assault as a teenager. Whelan, president of the Ethics and Public Policy Center, laid out a theory of mistaken identity using Google Maps and Zillow floor plans. The linchpin of Whelan’s thread: a notion that Christine Blasey Ford, Kavanaugh’s accuser, confused the nominee with a classmate who looked somewhat similar. It was this man, Whelan asserted, not Kavanaugh, who may have attempted to rape Ford about 35 years ago. Ford responded with a statement saying that she knew both men in high school, socialized with the man whom Whelan named, and had not mistaken the two. Even before that point, Whelan’s conspiracy theory had unraveled, unleashing a torrent of Twitter mockery and exposing a longtime GOP operative for what he is: a bad-faith character assassin with no moral compass.

But what’s most shocking about this thread, which Whelan has since deleted, is that Kavanaugh’s defenders appear to have genuinely believed that it would exculpate the nominee. Whelan is no random crank: He is a Federalist Society power broker who has played a major role in the selection of Donald Trump’s judicial nominees—including his good friend Kavanaugh. He and his allies teased out the mistaken-identity theory for days, hyping it on Twitter and apparently in a weirdly credulous Politico article. It appears, at the moment, to be the best defense the White House has. And that reveals that Kavanaugh’s nomination is in extremely serious trouble.

Whelan launched his career by clerking for the late Justice Antonin Scalia from 1991 through 1992. During that term, Justice Anthony Kennedy famously flipped on two blockbuster cases involving abortion and school prayer, preserving progressive jurisprudence to Scalia’s fierce ire. Whelan found his clerkship demoralizing because of Kennedy’s swing to the left; he once told me of the devastation he felt over that “disaster for the Constitution.” Following a stint on the GOP-controlled Senate Judiciary Committee and a detour into the lucrative world of corporate law, Whelan joined George W. Bush’s Office of Legal Counsel. There, he became friends with Kavanaugh, who worked in the White House Counsel’s Office and after that as staff secretary. Whelan personally emailed Kavanaugh in 2004 to tell him that he’d accepted a job as president of EPPC, a lavishly funded conservative evangelical think tank. (“Excellent,” Kavanaugh responded.) He also asked Kavanaugh to help him arrange a lunch with Karl Rove after he started his new gig.

From his perch at EPPC, Whelan began writing influential posts for National Review, which he has continued to do. He has also reportedly coordinated with the White House—as well as Federalist Society chief Leonard Leo—over the selection and confirmation of judges. When Barack Obama took office, Whelan switched gears, ruthlessly attacking his nominees from all angles. He spearheaded the successful campaign against Goodwin Liu, whom Obama nominated to the 9th U.S. Circuit Court of Appeals, smearing him as an anti-white racist. (Liu is now a respected justice on the California Supreme Court.) He also helped to tank the nomination of Dawn Johnsen to the Office of Legal Counsel on account of Johnsen’s criticism of what she saw as the office’s enabling of the Bush administration’s excesses.

During the Obama years, Whelan failed more often than he succeeded. He couldn’t keep Sonia Sotomayor or Elena Kagan off of the Supreme Court, though he did leak a mean letter that Harvard Law Professor Laurence Tribe wrote to Obama critiquing Sotomayor. Oddly, he also disparaged Kagan for … not learning to drive until her late 20s. He also attempted (and failed) to force Judge Vaughn Walker to recuse himself from the litigation over Proposition 8 because he is gay and went on to claim that Walker used the case to “feather his nest” with “prospective San Francisco employers.” These examples neatly illustrate the Whelan style: petty, bad-faith, ad hominem attacks to serve all-out ideological warfare.

And yet Whelan has long had a direct line to the Senate Judiciary Committee’s Republicans, according to sources familiar with the arrangement. He provides senators with questions and tactics to sink Democratic nominees and bolster Republican ones. Since Trump took office, per these sources, Whelan has worked closely with Leonard Leo and White House counsel Don McGahn to pick and push through judicial nominees. The Kavanaugh nomination was set to be the culmination of his career: Whelan himself was in a position to help select the justice who would undo Kennedy’s liberal legacy, vindicating Scalia at long last and reversing the catastrophe of that pivotal 1991­–92 term. And the man he pushed for the job was none other than his own close friend, and former colleague, Brett Kavanaugh.

That nomination, though, has sputtered in the wake of Ford’s credible allegations. Whelan has at least been smart enough to recognize that his usual tactic of character assassination would not work on this particular victim of attempted rape.

So instead, at some point over the past week, Whelan appears to have devised a bizarre theory of mistaken identity. On Monday, he vaguely floated the theory on Twitter. Then, on Tuesday morning, he tweeted a clip of GOP Sen. Orrin Hatch raising the prospect of mistaken identity. That evening, he was tweeting that he would soon put forth “compelling evidence” that would “show [Kavanaugh’s] categorical denial to be truthful. There will be no cloud over him.” Democratic Sen. Dianne Feinstein, he added, “will soon be apologizing to Judge Kavanaugh.” Conservative commentators, particularly Erick Erickson, signal-boosted this buildup. On Wednesday, Whelan tweeted about a “horrific incident similar to the one the accuser alleges may well have occurred. But if so, she’s got the wrong guy. Kavanaugh wasn’t present, as this and much more will confirm.” Shortly thereafter, Hatch’s deputy chief of staff, Matt Whitlock, retweeted this tweet, adding, “Keep an eye on Ed’s tweets the next few days.” (Whitlock has since deleted his tweet.)

Then, on Thursday, Whelan finally unspooled his thread. The backlash was swift and severe. CNN’s Jake Tapper described the tweets as “stunningly irresponsible.” Politico’s Ben White and the New York Times’ Maggie Haberman also gawked at the unforced error. The Washington Post’s Seung Min Kim, with Josh Dawey and Emma Brown, reported on Thursday night that “Republicans on Capitol Hill and White House officials immediately sought to distance themselves from Whelan’s claims and said they were not aware of his plans to identify the former classmate.”

Garrett Ventry, Senate Judiciary Chairman Chuck Grassley’s communications adviser, tweeted that the committee “had no knowledge or involvement” in the tweetstorm. On Friday morning, Whelan told the Post that “I have not communicated at all with Donald McGahn or anyone at the White House, or Judge Kavanaugh, about the topic of the Twitter thread.” (He did not deny communicating with Judiciary Committee staff.) He also apologized on Twitter for naming the classmate—though notably not for claiming on spurious grounds that Ford had confused Kavanaugh with someone else.

These claims are difficult to believe. As recently as Thursday morning, Politico’s Eliana Johnson reported that “three people who have spoke[n] to Whelan and Federalist Society’s Leonard Leo in recent days say they are ‘100 percent confident’ they’ve obtained information that will exonerate Kavanaugh.” It seems obvious that Leo and Whelan, at the very least, were working off the same playbook.

Moreover, the claim that no other major players were involved runs counter to Kim’s reporting that “Kavanaugh and his allies have been privately discussing a defense that would not question whether an incident happened to Ford, but instead would raise doubts that the attacker was Kavanaugh.” They are difficult to square with Hatch’s introduction of the mistaken-identity theory earlier in the week. And, at bottom, they just don’t make sense. Whitlock, the Hatch aide who previously said we should “keep an eye on Ed’s tweets the next few days” with regard to the mistaken-identity claim, now insists that he was totally unaware of Whelan’s plans. Really? The Senate Judiciary Committee’s Republicans want us to believe that they were hyping a theory of which they had no prior knowledge. That’s quite a coincidence.

It seems much more likely that Whelan had help in this apparent opposition research from those deeply involved in the confirmation fight—including those working closely with Kavanaugh and Hatch—and truly thought it would introduce sufficient doubt to secure the nominee’s confirmation. It is implausible that such a detailed conspiracy thread—with so many specific facts, so much purported evidence, and such advanced hype—was cooked up by Whelan alone.

If the people who helped construct and hype this notion really thought it would work, then this nomination is in on the verge of collapse. Whelan’s theory is astonishingly desperate, an outlandish and potentially defamatory Hail Mary that no rational person would find persuasive. His willingness to humiliate himself and destroy his reputation in a calamitously misguided effort to push Kavanaugh over the finish line speaks volumes. Hard as it may be to believe, this is apparently the best they’ve got. Their last, best hope to contradict Christine Blasey Ford rests on cobbled-together Zillow pages, Google Maps, yearbook photos, and a Facebook comment.

It is no surprise that Republican operatives who’ve conducted trench warfare against progressives for years would be willing to sink this low. But it is shocking to realize that the GOP has nothing else up its sleeve to save this nomination. There will be no miraculous exoneration of Brett Kavanaugh—just the frenzied tweets of panicked men who see their careful plans collapsing before their eyes.