Don’t Pretend the Kavanaugh Facts are Unknowable

The strangest thing to me about Thursday’s Judiciary Committee hearing was that the veteran prosecutor Rachel Mitchell, retained by the Republicans to cross-examine Christine Blasey Ford, didn’t already have, and seemed uninterested in obtaining, a crucial piece of evidence that Ford referred to in her testimony.

Ford does not recall precisely what date Brett Kavanaugh allegedly assaulted her, but she testified that approximately six weeks afterward she saw Mark Judge—who she claims was in the room during the assault—working at the Potomac Village Safeway. “If we could find out when he worked there, then I could provide a more detailed timeline,” Ford said. That would be an important fact, indeed.

Mitchell has been prosecuting sexual-assault cases for two decades. She knows how to use determinable contextual facts to nail down a precise chronology about a witness’s narrative. The facts surrounding Judge’s employment at Safeway are objective, documented, and readily ascertainable, and would provide a definitive date range for the assault. So why doesn’t the committee figure out those facts? The committee could easily subpoena Safeway for Judge’s employment records, or subpoena Judge himself. If Mitchell were prosecuting this case in Arizona, that’s the first thing she would do. Did she suggest to Senator Chuck Grassley that he issue a subpoena to Safeway?

Further reading: Kavanaugh's fate will have a massive ripple effect.

I’m a trial lawyer. I used to be a federal prosecutor, and now I do civil litigation and criminal defense. I spend my time trying to use the investigative and fact-finding tools of the legal system to resolve problems for people and companies that get in disputes. Every one of those disputes involves contested versions of particular events that happened years in the past. I, and thousands of others in my profession, make our living figuring out, methodically, who did what, when, where, how, and to whom, in cases where accounts are disputed, memories have faded, records have been lost, and witnesses don’t want to cooperate. And we do it in adversarial proceedings in which each factual assertion must be sourced, cited, and proved with evidence and testimony.

There’s nothing arcane or even particularly difficult about the investigatory steps the government could take to reach a reasonable factual conclusion about the Kavanaugh allegations. I simply cannot understand why the Judiciary Committee refuses to use the resources it has—namely, subpoena power, through which the committee can compel witnesses to testify and produce documents.

The committee’s approach to the Kavanaugh hearings reinforces the false image of trial practice as just throwing two people up there and letting the jury decide whom to believe. That’s not what trials are. When both sides have adequate resources (an important caveat), trials—and the months-long periods of document production and deposition testimony that lead up to them—are extraordinarily good vehicles for arriving at the truth.

I have the same satisfying feeling in every case as the evidence gradually fills in the gaps and a story begins to emerge. People leave remarkably specific paper trails of their activities, and are remarkably honest when they’re under oath. Most witnesses are very hesitant to outright lie in sworn testimony. They’ll squirm; they’ll be nonresponsive; they’ll have sudden failures of memory. But a good trial lawyer eats all that for breakfast; the coin of the realm in our business is the ability to pin a reluctant witness down to a concrete, definite answer. It’s common, moreover, for lawyers to investigate and litigate allegations of decades-old behavior. There’s nothing inherently unfair in a proceeding that seeks to uncover facts about such allegations.

Read Quinta Jurecic on Brett Kavanaugh’s discovery of injustice

Here are a few examples.

The federal government, right now, is bringing legal challenges to people’s citizenship, alleging that they were not in fact born in the U.S. I handled one such case years ago, right after I left the Justice Department. The government sought to deport my client, who was born in the 1970s and had lived in both Mexico and the U.S. throughout her life, claiming that she had actually been born in Mexico. My client and her family claimed she had been born in Los Angeles, in her grandmother’s house. She didn’t have a California birth certificate, but California has a procedure for getting one. So the family went to state court in L.A., offered sworn testimony from multiple family members who were present at the birth, and presented photos and other documents attesting to their whereabouts at the time.

The federal government decided it didn’t care what the state judge said, and ordered my client deported anyway, based on the testimony of another family member and the fact that she had lived in Mexico as a child.

I lost the case—but not because it’s impossible to do fact-finding about decades-old events. No one on either side would have ever suggested that the ordinary process of calling witnesses, asking questions, and examining documents was somehow inapplicable. And no one would have suggested that there was “no point” in talking to third-party witnesses or subpoenaing documents; or proposed that we just throw up one representative from each side, put on some “he said, she said,” and then decide whom to believe.

And that case was not unusual. There are dozens if not hundreds of pending cases in which the federal government requires a person to prove where he or she was born—a fact which, by definition, none of us remembers.

Here’s another example. The Department of Justice has a whole section dedicated to identifying World War II–era Nazis who obtained U.S. citizenship by concealing their wartime activities. I worked on one such case in 2006—60 years after the end of the war.

Here’s one more. In California, victims of childhood sexual abuse have until age 26 to bring civil lawsuits. And they can go to the court, in certain circumstances, for permission to bring the cases even later. I once had a case involving a claim of alleged sexual assault that was more than 50 years old.

Allegations of misconduct create serious repercussions for those accused, even if the allegations don’t result in a conviction. That’s why, in some contexts, our laws provide procedural vehicles for a person to affirmatively prove his or her innocence, erasing or mitigating those collateral consequences. California, where I practice, has a statute that allows a person to go to court and request a “judicial finding of factual innocence” if he’s been accused of a crime but not convicted, whether the charges were dropped, he was acquitted at trial, or the statute of limitations ran out.

Further reading: The 17 most striking moments from the Kavanaugh hearing

It’s like a criminal trial but with the roles reversed: The (formerly) accused puts on his case, with witnesses, physical evidence, documents, and so forth, and has the burden of convincing the court beyond a reasonable doubt that he is factually innocent. The petitioner has to show that “no reasonable cause exists” to believe that he committed the offense. If the petitioner succeeds, then the state has to seal and destroy all the police and court records. It’s as if, for legal purposes, the accusation was never made.   

The law sets a high bar for findings of factual innocence, and most applications are denied. But I’ve succeeded—twice—in cases involving clients falsely accused of sexual assault. All I did was use the ordinary tools of investigation and litigation to amass documentary and testimonial evidence, I presented my case to the court in writing, and then I appeared at a hearing and argued.

My point is threefold: First, if an accusation is false, then it is possible to prove it false using the tools of investigation and litigation. It is nihilistic and undemocratic to throw up our hands and say “We’ll never know,” as Senator Lindsey Graham and others who should know better have been saying of the Kavanaugh allegations.

Second, while we put the burden of proof on the government in criminal prosecutions, there’s nothing unusual about turning the tables in a civil case, where a party is coming to the court seeking affirmative relief. You want a judicial declaration of factual innocence, and you want your arrest records expunged? Then it’s on you to conclusively rebut these factual allegations. And if you don’t do that, you’re going to face collateral consequences every time some prospective employer runs a background check.    

Finally, there’s nothing unusual about allegations of bad behavior causing problems for people seeking employment, housing, professional licenses, and so forth, regardless of whether the allegations led to a conviction. People face adverse professional and legal consequences from allegations of bad conduct in many contexts where there was never a conviction or a trial. The Judiciary Committee has the power to provide a hell of a lot more due process than we provide to employees, immigrants, students, or public-housing residents, all of whom can lose benefits based on allegations not resulting in criminal charges. The committee has the time, resources, and authority to actually conduct a fair investigation. But it apparently doesn’t want to use them.

That’s a waste. It does a disservice to Ford, and also to Kavanaugh, who should welcome a full investigation given his categorical denials. Most troubling, it also undermines public confidence in the possibility that legal professionals can dispassionately piece together factual narratives about past events, in the face of conflicting memories and the passage of time. That confidence—the belief that the judicial process can work—is a pillar of modern civil society. Without it, we’re back to settling disputes with our fists.