By Brandon K. Essig
Like all Americans, I have observed the past few weeks of the Kavanaugh confirmation process with a feeling of impending but helpless doom—like watching a train chugging toward a ravine on a broken track with no way to save it but to shout “stop” at a machine whose power, bullheadedness, and sheer noise render it unable to heed basic, common sense warnings.
I worry for my country, but there is not much I can do about it at the moment. I’m sure many of you feel the same way.
What I hope to provide here is perspective from my experience as a prosecutor, litigator, and criminal defense lawyer. I’ve handled sexual misconduct cases in the Marine Corps and later spent eight years working with the FBI as a federal prosecutor. I’ve also been subjected to multiple FBI background investigations, to include one that gave me a top secret security clearance. As I relate some of my experiences with these issues now playing out before us, hopefully it can help to make some sense of this maddening process.
The Unique Nature of Sexual Assault Investigations
Sexual assault investigations are wholly different from any other type of crime or allegation of misconduct. Usually the only witnesses to the actual assault are the victim and the alleged perpetrator. This makes them the key witnesses, but, as one might imagine, they almost always disagree on what actually happened at the time of the central event—“I was raped/touched in an inappropriate manner against my will.” v. “We had consensual sex.”
This problem is made worse with the combination of youth and alcohol. The handful of sexual assault cases I handled in the Marine Corps all involved this combination, which at times made the truth impossible to decipher. I saw cases where the victims and perpetrators remembered things that never happened at all or didn’t remember things that did. I saw this phenomenon have disastrous effects on both victims and the accused.
I once dismissed a case because witness accounts strongly indicated that the victim’s story could not have happened as she described. To this day, I believe she made her accusations in good faith, but I also believe she was factually incorrect and the alleged perpetrator was wrongfully accused. On the other hand, I’ve encountered a number of victims of sexual assault who were never vindicated, either because their cases were lost in court (an emotionally devastating result for the victim) or there was never enough evidence to move forward in the first place.
For this reason, the most important evidence in a sexual assault investigation is often “circumstantial” evidence; i.e., evidence that proves the circumstances of the event. Such evidence is often the only way to attempt to determine whether the victim or the perpetrator is to be believed. This evidence can include physical evidence such as DNA or a medical examination. Yet, just as important, if not more, are witness accounts that corroborate or refute basic facts like the time and place of their interactions between the victim and perpetrator, or the nature of that interaction (flirtatious, strained, fall-down drunk, etc.).
This evidence is rarely so conclusive as to remove all doubt, but it does assist in resolving the ultimate credibility issues of the victim and the accused. So, how do they play out with Dr. Christine Blasey Ford and Judge Brett Kavanaugh?
Dr. Ford’s Credibility
The most credible aspect of Dr. Ford’s testimony was how she presented herself. She was credible, believable, and personally compelling. Anyone who has worked on a sexual assault case will tell you that victim credibility is an essential condition to even begin an investigation. Absent overwhelming physical evidence, you simply cannot establish the thing happened without a credible and compelling victim.
On this point, Dr. Ford’s testimony begged the question: why would someone like her make up something like this?
However, there are deeply troubling aspects of Dr. Ford’s story. Her recollection is devoid of basic reliable corroborating facts of the event—the who, what, when, where and how. Most troubling is the fact that she identified multiple individuals by name who have denied any memory of a gathering like the one where she alleges the assault occurred. These individuals include a friend who denies ever knowing Brett Kavanaugh at all. This type of discrepancy in a victim’s statement is exceptionally unusual.
Most prosecutors would close this case and move on quickly, as this would not be enough evidence to get it off the ground. This does not mean she is lying, but the holes in her story are numerous and gaping.
Judge Kavanaugh’s Credibility
Like Dr. Ford, Judge Kavanaugh’s personal presentation was immensely credible—tears, anger, indignation, and all. I am puzzled by the argument that Kavanaugh’s emotions in some way belied a lack of judicial temperance or undermined his credibility. As I heard someone comment over the weekend, how’s a man supposed to act when he’s publicly and, he believes, falsely accused of sexual assault and gang rape?
What also struck me about his testimony was the immense detail he provided. Any good lawyer knows that the best defense to a sexual assault allegation is to admit everything except the illegal thing. In a rape case, you don’t deny sexual intercourse; you admit the intercourse happened and deny it wasn’t consensual. The last thing you want to do is create a story with details that can be attacked, refuted, or disproven. But that is exactly what Judge Kavanaugh did.
He named names, many names, and thereby offered up dozens of witnesses to poke holes in his denial. It is also interesting thatJudge Kavanaugh refutes the whole thing. He wasn’t even there. If he is lying about this fact, it should be very easy to prove. If a single named witness placed him at such a gathering with Dr. Ford within the relevant timeframe, the consequences could be devastating to him. He could be prosecuted for perjury, impeached, or censured by the United States Senate. It’s hard to imagine that a sitting United States appellate court judge would take this risk if his testimony was false.
In my view, the least credible aspect of Judge Kavanaugh’s defense was his calendar. It helps in some ways to demonstrate that he detailed his social life and didn’t include this party. However, no one would find it surprising that he did not document a party where he did the things Dr. Ford claimed he did. I see the calendar mostly as a non-issue. If I were his lawyer, I would tell him to place far less emphasis on it.
So can an FBI investigation resolve this?
The answer is no. The FBI investigation is mostly a ruse. This is not a criminal investigation so the FBI’s powers are exceptionally limited. The agency has no ability to really do anything the Judiciary Committee has not done already. They can ask questions and write reports, but they can’t compel anyone to speak with them. They can’t take statements under oath, and they can’t issue subpoenas or search warrants. They can only get information from people willing to give it to them voluntarily.
The one virtue of an FBI investigation is that the agency brings an air of credibility that the Committee does not, so it gives some solace to the public that this process has not been entirely hijacked by politics.
To achieve this, my recommendation would be to publicly appoint an FBI task force that would be given carte blanche to interview any witness willing to speak with the agents over the next ten days. I’d give them another week to complete their interview reports and then have the agent leading the task force brief the Judiciary Committee.
The Democrats would hate this because the public would hear the agents return only neutral findings with little to no corroboration of Ford’s testimony. The Republicans would hate it, because any investigation would be susceptible to never-ending critiques about things the investigators did not do.
To quote the late-great Johnny Cash, “I hear the train a-comin’, it’s rollin’ round the bend, and I ain’t seen the sunshine since I don’t know when…”
Brandon Essig is a partner at the Birmingham law firm of Lightfoot, Franklin, & White LLC where he specializes in white collar criminal defense, corporate compliance and internal investigations.