Sunday, September 16, 2018

Christine Blasey Ford: No Proof And Less Credibility

After the confirmation hearings by the Senate Judiciary Committee regarding the nomination of Appellate Judge Brett Kavanaugh to the Supreme Court concluded, comes an eleventh hour allegation of sexual assault against Judge Kavanaugh by a woman who claims to have known him in high school, when the assault presumably occurred.

To be sure, the details provided are, at the very least, salacious, and had they been contemporaneous with the event, tantamount to the accusation of crime.

However, they are not contemporaneous.  The assault, if it occurred, was in the early 1980s.  The accuser, Christine Blasey Ford, by her own admission did not mention it to anyone until decades later:
Ford said she told no one of the incident in any detail until 2012, when she was in couples therapy with her husband. The therapist’s notes, portions of which were provided by Ford and reviewed by The Washington Post, do not mention Kavanaugh’s name but say she reported that she was attacked by students “from an elitist boys’ school” who went on to become “highly respected and high-ranking members of society in Washington.” The notes say four boys were involved, a discrepancy Ford says was an error on the therapist’s part. Ford said there were four boys at the party but only two in the room.  
Note that Ms. Ford not only makes no mention of the event until 30 years after the fact, she made no mention of Kavanaugh's name at first, and goes on to challenge the accuracy of the therapist notes she herself provided, presumably to bolster her claims of trauma.

How is this a credible allegation? Where in this sordid tale is there anything that amounts to substance? Where are the provable facts, the evidence, the corroboration of her claims?  There is none.

There are no recitations of events to friends at the time.

There is no police report.

There is no complaint made against Judge Kavanaugh either at his school or anywhere else.

There is no proffered diary entry from Ms. Ford's teenage years.

There is, however, refutation against Ms. Ford's claims.  In her statement, she alleges that a friend of Judge Kavanaugh's, Mark Judge, was present during the assault.  Mark Judge has flatly denied such an event ever took place: 
Reached by email Sunday, Judge declined to comment. In an interview Friday with The Weekly Standard, before Ford’s name was known, he denied that any such incident occurred. “It’s just absolutely nuts. I never saw Brett act that way,” Judge said. He told the New York Times that Kavanaugh was a “brilliant student” who loved sports and was not “into anything crazy or illegal.”
Ms Ford does not accuse Mark Judge of any misconduct.  In fact, she credits Mark Judge with facilitating her escape from the situation:
Ford said she was able to escape when Kavanaugh’s friend and classmate at Georgetown Preparatory School, Mark Judge, jumped on top of them, sending all three tumbling. She said she ran from the room, briefly locked herself in a bathroom and then fled the house. 
Her presumed hero of the moment, in other words, claims the event never happened.

Those defending Ms. Ford and her allegations will no doubt raise the standard rhetorical question, "why would she lie about it?"  Given the severity of the offense, that is a reasonable question.  Amazingly, Ms. Ford herself, and her husband, provide the answer:
In an interview, her husband, Russell Ford, said that in the 2012 sessions, she recounted being trapped in a room with two drunken boys, one of whom pinned her to a bed, molested her and prevented her from screaming. He said he recalled that his wife used Kavanaugh’s last name and voiced concern that Kavanaugh — then a federal judge — might one day be nominated to the Supreme Court.
Several things are remarkable about this statement. 1) the revelation presumably came six years ago, and nothing was mentioned to anyone at the time; 2) Russell Ford recalls his wife using Kavanaugh's last name (but not his full name); and 3) Ms. Ford and her husband were concerned that Judge Kavanaugh might be elevated to the Supreme Court.

Until that nomination happened, Ms. Ford was willing to "let bygones be bygones," and move on with her life. By her own admission, Ms. Ford is making this statement specifically to prevent Judge Kavanaugh from being confirmed as a Supreme Court Justice.

She is not seeking redress, she is not seeking justice, she is seeking merely to hurt Judge Kavanaugh.

Again comes the question: how is this a credible allegation? And again comes the answer:

There are no recitations of events to friends at the time.

There is no police report.

There is no complaint made against Judge Kavanaugh either at his school or anywhere else.

There is no proffered diary entry from Ms. Ford's teenage years.

There is no evidence.

There is no corroboration.

From this answer comes the conclusion: this is no credible allegation.  Not only is the allegation unproven, but the span of time since the alleged events has rendered the allegation unprovable.  It cannot be proven to be true, and it cannot be proven to be false.

Claims which cannot be proven have no place within a court of law. They have no place before the Supreme Court of the United States. They should have no place in the proceedings for confirmation of Supreme Court Justices.

Christine Ford's allegation have no place in the public dialog. Period.

Wednesday, August 22, 2018

More Convictions, More Guilty Pleas, Still No Evidence Against Donald Trump

Last month--July, 2018--I observed that, despite nearly two years of investigation, there was as yet no credible case of wrongdoing to be made against President Trump.

At the time, Paul Manafort's trial had not concluded, and Michael Cohen had not entered any guilty pleas. Now, Paul Manafort has been convicted on 8 counts of tax evasion and bank fraud, and Michael Cohen has pleaded guilty to tax evasion, lying to investigators, and, intriguingly, two counts of campaign finance violations.

Does this mean the "beginning of the end" for President Trump?  On the facts, Trump's demise seems as remote now as it did last month.

Manafort's offenses took place years before he became involved in the Trump campaign--his convictions, while of some comfort no doubt to Mueller, do not advance in any way a case against the President.  They do not bolster claims of "collusion" or of conspiracy, nor do they build a case of obstruction of justice. As big a headline as Manafort's conviction is, in the ongoing effort to unseat Donald Trump his conviction is simply not relevant.

Arguably, Michael Cohen's plea deal does create a legal issue for Donald Trump, but while Cohen is now alleging Donald Trump violated campaign finance laws, the best witness against Michael Cohen is none other than....Michael Cohen.

Previously, prosecutors have alleged that Cohen made payments to two women in order to buy their silence about alleged extramarital affairs with Donald Trump many years ago, and that he was repaid by the Trump campaign through a set of "sham" invoices submitted by Cohen for legal work. Cohen himself recorded a conversation with Donald Trump where they discussed one of the payments.  Yet that recording--quite unlike the recordings that doomed Richard Nixon during Watergate--have shown to have exactly zero traction as proof of malfeasance by Donald Trump.

Further, Michael Cohen has made numerous public statements denying the very thing he is now alleging.  We must therefore ask the question "was he lying then, or is he lying now?" With federal prosecutors threatening him with decades of jail time, the notion that he might, in the vernacular popularized by Alan Dershowitz, "not merely sing, but compose" is not at all unreasonable--a possibility that is strengthened by the fact that one of the offenses to which Cohen has pled guilty is lying to investigators; it is hard to fathom how a witness who is an admitted liar can enjoy much credibility at trial.

Finally, there is the reality of Michael Cohen being a lawyer and Trump's "fixer". As a lawyer, one of Cohen's ethical obligations to his client is to advise him of when a particular course of action is against the law, and to guide him so as to avoid violating the law. The crux of the prosecution's allegations of campaign finance violation is that Cohen was repaid by the Trump Campaign, as opposed to the Trump Organization--which would have not been subject to the same scrutiny regarding campaign finance law.  In other words, it is not the payments themselves that were illegal, but that they were paid out via a political campaign entity and not a private business.

Thus we have the conundrum that if Cohen knew or had reason to believe the campaign paying off the two women was an illegal activity, why did he a) not advise Trump to take a different tack on the matter, or b) bill the Trump Organization or even Donald Trump personally for reimbursement? By the same token, if a member of the bar submitted invoices to the Trump Campaign for reimbursement of expenditures in this fashion, is it unreasonable to impute from those invoices the likelihood that Cohen did not consider the modality of payments to be illegal?  

That Donald Trump largely self-funded his campaign only makes the legal case against him even murkier--ultimately, the argument that Cohen might simply have been repaid from the wrong checking account cannot be dismissed. Impeachment over what amounts to a bookkeeping error is too absurd even for the most rabid of Never Trumpers.

As for the payments and the extramarital affairs, the legal assessment of both, as well as their potential for supporting impeachment, can be summed up as "so what?" For all society's railings against adultery, it is not a crime. Buying silence--especially when the payments were solicited by the women involved, as is the case here--is also not intrinsically criminal.  In neither case did Donald Trump suborn perjury or encourage anyone to make false statements to law enforcement.

Moreover, President Obama received the largest FEC fine in history for improprieties in how his 2008 campaign handled contributions, and no one--not even the most strident of Obama critics--mentioned impeachment over the matter.

As a practical matter, when evidence is murky and unclear, that becomes "reasonable doubt" to a jury. Despite the fulminations and jeremiads against Trump coming on the heels of Cohen's guilty plea, the reality of Cohen's latest statements is that they are murky and unclear, and easily challenged by Cohen's previous testimony (some of which may might have been under oath before Congress, raising the specter of perjury charges). Cohen himself is a damaged witness of dubious credibility.

Unless more damaging material comes to light, either in regards to Cohen's allegations or to any other matter under scrutiny by the Mueller investigation, we still do not have clear evidence of any crime committed by Donald Trump.