Saturday, September 29, 2018

Kavanaugh Background Investigation

This post will be unusually short (for me).  I read that the FBI background investigation update on Brett Kavanaugh was to cover current credible allegations.  I figured that was the Christine Ford allegation of attempted rape.  There have been two other major allegations, and potentially other minor ones.

The Ramirez allegation was that Kavanaugh exposed himself to the young woman at a college party.  She was unsure of whether it was actually Brett Kavanaugh and two anti-Trump newspapers (the New Yorker and New York Times) both said they could not find anybody that could corroborate her story.  To me, that's not credible.

The Swetnick allegation was that Kavanaugh was present and/or participated in multiple gang rapes at parties as well as spiking punch to get potential victims drunk. Swetnick was a college student who reportedly attended these high school parties at least 10 times.  Including one instance where she alleges she was the gang rape victim.  Again no corroboration.  Why would a college woman attend high school parties where gang rapes are taking place, multiple times?  Again, I don't find the allegation credible.

Yet media reports this morning state that the FBI has already tried to contact Ramirez and Swetnick to inquire about their allegations.  Maybe when they get details, they will find them not credible and discontinue their inquiries.

On the other hand, this potentially opens the investigation up to all non-curricular activities of Brett Kavanaugh in high school and college.  And potential interviews with anybody that knew Brett Kavanaugh or attended any party or non-school functions.  That is a ridiculously broad investigation and would require a ridiculous amount of resources to do it right.

Its like a Russian collusion investigation into the 2016 presidential election turning into decade old tax evasion and money laundering investigations involving Ukraine.  Unlimited.

I cannot believe the republicans in the Senate expected an unlimited investigation, even if it is supposed to last only 7 days.

Kavanaugh Nightmare Continued - BI

I thought the saga of dragging Brett Kavanaugh through the mud was about over.  Yesterday morning, Senator Flake had said he was going to vote yes for confirmation.  Then came his confrontation in an elevator, shown on national media, with a woman berating him for his position.  A little time later his position became he would vote to move the nomination out of committee but would only vote for Kavanaugh if the FBI did a background investigation on current credible charges against Kavanaugh.  Apparently he and Senator Murkowski went to Mitch McConnell and pointed out he wouldn't get his 50 votes without an FBI investigation.

Almost immediately, it was announced that President Trump was directing the FBI to do a limited, supplemental background investigation (BI) into current credible allegations against Brett Kavanaugh.  He limited the investigation to 7 days.  So we have another week for democrats to come up with another valid reason for not voting on Brett Kavanaugh.

What follows is purely my own thoughts and conjecture about what has happened and what will happen.

First, I want to address Jeff Flake and his potential motivation.  In the past, he's been rabidly anti-Trump.  There is no doubt he wants to stick it to the President.  That would mean a no vote on Kavanaugh.  On the other hand, people say good things about him personally, so I assume he does not want to hurt somebody he doesn't have a grudge against, such as Brett Kavanaugh.  So I figure he's torn.  I don't believe for a minute that he trusts Christine Ford's identification of Kavanaugh as her attacker.  Before the viral elevator video, he didn't have an excuse to vote for delay.  Then he did, and he took it.  He's leaving the Senate, so his electorate and voters don't matter.  Only his own conscience.

Senators Murkowski (R), Collins (R), Manchen (D), Donnelly (D), Heitkamp (D) and McCaskill (D) are in different situations.  Let's take the democrats first.

These folks are in states that went big time for Trump and they are up for re-election in a few weeks.  They have, by voting history, a big preference for going along with the democratic majority.  So presumably, they want to vote no.  I suspect they don't want to hurt Brett Kavanaugh and his family either, but they don't want him on the Supreme Court.  On the other hand, they have to be evaluating the potential effect of this confirmation on their election chances.  I suspect, they will only vote yes if they assess their electorate as likelier than not voting them out if they vote no.  They are happy for any delay in making this decision.

Senator Murkowski and Senator Collins are obviously female and registered republicans (for those who don't follow politics) and tend to jump the fence and vote for liberal social causes.  You never know how they are going to vote.  Neither has a really solid republican base in their states.  And both tend to vote for feminist issues.  Somehow, Brett Kavanaugh is considered anti-abortion and women, though his record is contrary to that media position.  Their party allegiance is less than that of their counterpart democrats, that I just mentioned.  But I believe they want to vote yes for Kavanaugh.  On the other hand, they worry about their reputation with their women voters.  A delay gives them more time to assess their options, and it potentially could provide a stronger case for Kavanaugh and a better argument for voting yes.

So, if no additional negative information were to come out in the next 7 days, Kavanaugh would likely get confirmed.  If there is any additional credible allegations or information, either from the FBI or via the media, his chances get worse and worse.

For example, yesterday I said their was no statute of limitations in Maryland for attempted rape.  Today, I learned in 1982 there was.  Attempted rape was a misdemeanor with a 1 year statute of limitation.  Brett Kavanaugh couldn't be charged, or at least tried, for any assault in 1982.  But the Montgomery County Chief of Police and State Prosecutor said they would be willing to investigate if anyone filed criminal charges.  They are democrats and wouldn't be restricted to any 7-day limit.  Since there would be no trial and no discovery, their investigation wouldn't have to reveal any information suggesting the innocence of Brett Kavanaugh.  I suspect the anti-Trump lawyers for Christine Ford will try to get her to file charges.

Then there is the FBI background investigation.  I've undergone background investigations about every five years for my previous security clearances.  Since I've had nothing bad on my record, they have been routine.  You fill out a long, very long questionnaire about your history and potentially bad events.  You get interviewed by an investigator.  And they ask questions of your neighbors, friends and others identified in your history.

I can only presume what they would do with a criminal allegation where a charge was never filed.  I would presume they would interview the accuser and anyone he/she identified as being involved or having knowledge of the alleged crime.  I would further assume they would investigate, to the extent resources allowed, the motivation and credibility of the accuser and witnesses.  In most background investigations, the interviews are conducted by agents in the respective localities involved and I believe their reports are aggregated and assessed as a package.  You don't have one detective like you do on TV that makes it their life ending motivation to bring a criminal to justice.

On the other hand, I suspect the FBI will not make this a typical background investigation.  They will assign more resources than normal and the process and reports will get more scrutiny.  I suspect they will still not have subpoena power to force anyone to talk or produce non-public records.  However, anyone that does communicate with the FBI or their agents will be under penalty of perjury, just as they were with the Judiciary Committee's investigators.

But if Christine Ford and/or her lawyers don't want to provide information, such as polygraph records or therapy notes, the FBI won't have that information.  If Christine Ford and/or her lawyers have any concern about an in-depth forensic discussion, they will not make her available for further interviews.  If she does an interview, I would expect her lawyers to be present and for her to have further memory lapses about anything having to do with polygraphs, therapy, or assault details that could be disproved.

But I could be wrong on that.  During Friday's hearing, it appeared Christine Ford's team had limited the committee's access to information, attempted to mislead the committee, and crafted the event to avoid any serious questioning.  I don't think the FBI will get access to any additional information from Ford or her attorneys.  They may be able to talk to people she's discussed the event with (from 2012 to today), but that is hearsay and those folks would have their own credibility issues.  My guess is the FBI won't try to talk to anyone but the therapists and the polygrapher, and I think both will decline based on confidentiality claims.

The FBI will likely talk to the other people Ms. Ford identified as being at the party.  They've already made on-the-record statements on penalty of perjury, so it is unlikely they can do more than elaborate.  Ms. Ford's female friend could say how she never knew of Ms. Ford lying about anything, something like that.

One thing I do not know is how much investigator personal opinion on the credibility of an interviewee is allowed by the FBI.  My guess, personal opinion is allowed on the 302's.  I'm sure they prefer to have evidence of lying or dissembling when the agent questions credibility, but my guess is they allow opinion and expect the people evaluating the 302's to assign their own level of trust in the agent's opinion.  With recent evidence of FBI prejudice against Trump and for Clinton, this throws a lot of uncertainty into what those 302's will say.

By the way, Privacy Laws are going to theoretically prevent any release of information in the background investigation to the public.  I'm assuming the whole package will be transmitted to the Judiciary Committee, but like with Ms. Ford's letter in the previous package, they may black out key information.  And like with Ms. Ford's letter that requested confidentiality, I'm guessing any negative findings will be leaked to the press, with everyone declaring they didn't do it.

My best guess is that the FBI will report an inability to access additional information on Ms. Ford's accusation and cannot therefore assess her credibility with any confidence.  They may highlight the relative friendships of the witnesses and highlight any probable memory losses due to medical issues over the years.  One would expect, with unbiased agents, and the previous difficulties encountered by committee investigators, that the FBI supplemental BI will be unable to confirm that a crime was committed and cannot add any significant additional information on the allegation.

But I don't think that is the only event that will appear in the media over the next week.  Montgomery County in Maryland may open an investigation if Ms. Ford's lawyers can convince her to file charges.  The media will be doing their best to find additional people (with corroborating witnesses) that will make additional allegations against Brett Kavanaugh.  Do you think that the anti-Trump resistance cannot come up with two progressives willing to make an allegation for money?  It can take some time to find people associated in some way with Brett Kavanaugh.  But the delays in confirmation are continuing, and that time is increasing.

As you've seen, statements by just about everyone that knows Brett Kavanaugh that he's not the kind of person to treat anyone badly and statements that refute charges and even the actual get together are not enough to get him a vote.  All there has to be is an allegation of misconduct, and they put off the voting.  Further, they drag Brett Kavanaugh's reputation through the mud in the media.

This is wrong.  Our society cannot continue in this fashion.

Friday, September 28, 2018

Kavanaugh vs the US Senate's Judiciary Committee

The Judiciary Committe's hearings on Judge Brett Kavanaugh's nomination for the US Supreme Court have left me very unhappy.  I don't like the borking he received or the disrespectful in-committee protesters.  But the allegations of attempted rape, exposing himself, and then conspiracy to commit gang rape--all at the last minute and unsubstantiated--infuriated me.

I was also irritated by my wife during the whole episode.  She would watch the NBC or CBS evening news and then make comments like "Kavanaugh really screwed up."  I told her the allegations were ridiculous and that the party attendees said it didn't happen, and I asked her to read some articles on the allegations.  She refused, and at one point said something like "... all men behave horribly, except you."  Predictably, the qualifier didn't make me feel any better.  Subsequent discussions made me suspect she thinks rich, powerful men all misbehave, and not the people we know.  I know she has a lot of male friends at work, and has never given even a hint of any sexual misconduct that she has observed.  My conclusion was that the media propaganda against Kavanaugh was having an impact.

So, like much of the nation, I watched the Ford and Kavanaugh hearing yesterday.  And there were a lot of things about the day's events that really bothered me.

First, I learned there is a process to confidentially issues handle raised about a candidate that doesn't involve an open hearing.  Christine Ford wanted to keep her accusation confidential.  Diane Feinstein didn't pursue the confidential process, but waited till just before the first vote after the hearings to raise the complaint.  I'm leaving out a lot about how despicably I think the democratic members of the committee  behaved.

Next, there's the fact that attempted rape apparently does not have a statue of limitations in Maryland.  I think every woman that is sexually assaulted or abused should report the incident when it happens.  Not doing so lets the offender off the hook and potentially allows him/her to continue the behavior and assault or harass someone else.  Yeah, I know reporting this type of crime is difficult, and I theoretically understand why some women (or men) do not.  But even if there is not enough evidence for a trial or conviction, the event is available as supporting a pattern of behavior for the next victim.

But back to my point.  I was surprised there is no statute of limitations in this type of crime.  She could still report the crime to the local Maryland police department where it occurred and get the investigation she and all the democrats on the committee say they want.  Why doesn't she?

This line of thought leads me to my next point.  There was too much information suppressed at the hearing.  I don't think a police investigation was likely to reveal that information, as I don't think they could find any corroborating evidence to lead to a full scale court case with discovery and full cross examination.  But there is the chance that a prosecutor could still bring it to trial.  We've seen a lot of politically motivated trials in the past few years where there did not seem sufficient evidence to proceed.  But a real trial would give the defense the opportunity, through discovery, to view evidence that brings into question Christine Ford's accusations.

Evidence such as her statements in couple's therapy and individual therapy that were not provided to the committee.  What was her story then?  What did she say about her memory of who assaulted her?  You would think that just relevant parts of her therapy discussions could have been presented.  But then maybe they would have shown more problems with mental issues?  I prefer to assume that they likely showed she didn't know who her attacker was at the time or that her account of the event was significantly different.

Then there is the polygraph test recording and list of questions.  All the committee was given was the polygrapher's conclusion that she answered two questions truthfully and that she verified the truthfulness of her hand-written story that day.  Yesterday we found out the polygrapher was paid by the liberal pro-bono attorneys Christine Ford 'hired'.  Way too much information being withheld.  It's even worse when Ford described the questioning as lengthy and emotional, yet the report says they only asked her two relevant questions.

Then there's the whole episode about Ford not understanding that the committee offered to send investigators or come itself to California to interview her.  Instead, she insisted on a delayed interview in DC, because, according to her lawyers, she was afraid to fly.  Yet she flys frequently for work and vacation.  Worse to me was her response to the republican questioner, Ms. Mitchell, when she first asked about whether she flew to DC for yesterday's inquiry.  She said she had a lot of encouragement from friends helping her to fly.  The subsequent revelations of frequent flying suggested strongly that she was attempting to dissemble or mislead the audience.  This is even inconsistent with an assumption that her liberal lawyers had their own agenda and didn't properly inform her of the committee's offers or that they were the ones providing the fear-of-flying excuse.  Ms. Ford made it obvious she was also being misleading.

Before getting to her actual story, let me point out that the four people she identified as being at the party all say they have no memory of such a gathering.  Her female friend went further and said she had never met Brett Kavanaugh.  These people don't just say that Brett did not assault the female, they claim there was never a get together like the one described by Christine Ford.  And her good female friend says she never met or knew Brett Kavanaugh, one of only four guys at a small get together. 

Now, if these folks had been talking to a reporter, you might believe you could impeach their 'testimony.'  The boys probably felt some sympathy for their friend.  Christine Ford says her female friend has medical issues.  But they weren't talking to a reporter.  They made the statements on penalty of felony--making false statements to the U.S. Senate.  If they wanted to help their friends, and avoid legal jeopardy, they should have simply stated that they don't remember anything about such a party.  Instead, they said no such party took place, and even that the female friend had never met Brett Kavanaugh.

Their on-record statements directly refute the story that Christine Ford told.  This is why there should never have been any public hearings.  Some democrat involved released Christine's Ford name to the media, the democrat's on the committee demanded a hearing, and the statements contradicting Ford came to light after the republicans were committed to a hearing.

Now back to Christine Ford's testimony and story.  First, let's address the 'thorough' exploration of Ms. Ford's story.  The democratic senator's toughest question was to what degree of certainty Mr. Ford believed Brett Kavanaugh was her assaulter.  She answered 100%.  All of the rest of the democratic time was taken up speaking about how heroic she was or asserting that they needed an FBI investigation to determine the facts.

The republican senators opted to have Ms. Ford questioned by Ms. Mitchell, a prosecutor involved with sexual assault crimes.  This was probably their best option as plenty of pre-inquiry media discussion involved the fact that it was going to look like 11 old white men were going to attack the credibility of a helpless female.  But the rather innocuous list of questions Ms. Mitchell asked did not lead to any significant impeachment of Ms. Ford's testimony.  Sure, she found false-hoods, pointed out some of the unlikely representations, and showed some evidence of liberal/progressive involvement in supporting her presentation.  But she never made any pointed accusations or highlighted what the answers meant.  It was like a deposition, rather than the public trial or roasting that was meant to convict or clear Brett Kavanaugh of allegations of attempted rape.  Sure, they all claimed this was just a job interview, but polls show that up to 50% of the public think he committed attempted rape.  That's not the outcome of a job interview.

As I suspected, she gave a summary of her 'findings' to the committee later that evening out of camera view.  Apparently she told them Ms. Ford's story was not enough to file charges or even get a warrant.  But the public hearing wasn't just about gathering info for the republican senators, it was about the public's view of the behavior of a man nominated for the Supreme Court.  If the public believed he was guilty, it wouldn't matter what the individual senators believed, they would vote the way that would keep them in office.

So, there was no effective cross examination or even thorough inquiry into Ms. Ford's story.  Here are my thoughts.

First, she seemed very sincere in describing a story of assault.  I believe she was assaulted at some time in her youth, and she used those memories to support her earnestness.  I do not believe she was assaulted by Brett Kavanaugh, though she may have come to that conclusion.  But she was never asked about how often she had met Brett Kavanaugh or why she was able to identify him.  When asked about who introduced her to Brett Kavanaugh, she refused to identify the person.  Why?  Ms. Mitchell did no questioning on the identification of the attacker.  And this seems to be the obvious line of questioning.  The one thing she remembers, but no questions?

At this point, I also want to highlight something else that was never in the record.  All of her social media was scrubbed.  I don't do a lot of social media, but most people do.  If she did not use social media, why not just explain it.  But she was reported to have marched once and signed a petition once recently involving anti-Trump resistance.  One may assume that there was derogatory behavior in her social media, whether anti-Trump, progressive, or showing personal behavior that would not have reflected well on her believability.  But no questions were asked.

If she was anti-Trump or pro-resistance, it would help to explain a false identification of Brett Kavanaugh.  But we aren't even given the opportunity of learning about such a motivation.

Now the story itself.  I understand having a bad memory about events from 36 years ago.  But there's some behavior that most people would expect.  Like a 15 year old does not go to a party by herself.  In this case, we have the implication that her female friend accompanied or met her there.  I don't know about you, but I walked to parties on campus and drove to others.  The few times I went to gatherings or events when I was younger, I either got dropped off and picked up by friends or family.  Someone had to have been there to help her get there and home.  Though this is a national event, and no one has come forward.

So she's at a small party and is assaulted.  She doesn't approach or get her friend's help.  Doesn't warn her about the guys' behavior.  Doesn't get her assistance in going home.  And doesn't say anything to her good friend about what happened.  Further, her friend doesn't notice or inquire about her absence, nor note and inquire about subsequent behavior that Ms. Ford describes as having ruined her life for four to five years.  And now, her friend says no such get together ever happened and she has not met Brett Kavanaugh. 

Her friend's statement didn't even note that she had observed any change in Ms. Ford's behavior during that period of time that might have been explained by a traumatic assault.

The whole setup prevented any thorough questioning of Ms. Ford's account, including avoiding an off-camera in-depth forensic interview.  Much of the supposedly supporting evidence (therapy transcripts and polygraph recording) were not available to the committee or the public.  Almost no background information is available on Ms. Ford, other than typical resume facts, that would allow a reviewer to assess the likelihood of other motivations for her story.

We are asked to believe she is telling the truth just because she was earnest and believable on the stand.  But the others' that she claims were at the party assert there never was such a party.

I believe Kavanaugh was unjustly smeared.  He was not given the opportunity to question his accuser, and the process prevented anyone else from doing so.  I believe Brett Kavanaugh is a good man and should be confirmed as an Associate Justice of the Supreme Court.