Years later, Hill said that testifying during Clarence Thomas’s Supreme Court confirmation hearing was “worse than being put on trial, because in a trial you’ve got legal protections.”
.. But in some ways, a criminal trial might be better than testifying before the Senate Judiciary Committee — at least for Ford.
.. At Thomas’s confirmation hearing 27 years ago, Republicans knew they were essentially going to turn the hearing into something like a trial, recalled Barbara A. Mikulski, the Maryland Democrat who at the time was in her first term as a U.S. senator. “And Professor Hill would be the one on trial,” she recalled recently.
.. Ford might be better off as a complainant in a criminal case than at the mercy of a Senate committee with a partisan chairman unlikely to rein in its members.
.. At a criminal trial, juries are drawn from the general population and winnowed through in an adversarial process. The prosecutor and defense attorney work to eliminate bias and select a group to take on the role of juror effectively.
It’s not unheard for jurists to come in with preconceived notions, though jurors are not supposed to deliberate until all the evidence has been presented. Publicly voicing a prejudgment, however — as several Republican senators have already done — would constitute grounds to dismiss a prospective juror.
And yet those biased senators, with their preconceived notions, will be free to participate in the hearing should Ford come to Capitol Hill to testify.
.. The rules of evidence aren’t enforced at congressional hearings. But they would apply in a criminal case, benefiting both Kavanaugh and Ford, according to Aidala. Those rules preclude questioning on matters deemed inadmissible and those not relevant to deciding key issues... “For Ford, I don’t know how far afield the senators will go about talking about her sexual exploits in high school and college; but they wouldn’t be able to do that in a court of law,”.. These protections, crafted for sex crime victims, limit admissible evidence about a victim’s past sexual behavior.
.. More importantly, perhaps, the case would be presided over by a neutral judge, who would control all aspects of the trial and maintain courtroom decorum. A judge would also prevent attorneys from badgering testifying individuals; though trials feature drawn-out cross-examinations, lawyers cannot repeatedly rehash the same topic.
.. For Ford and Kavanaugh both, Aidala said, “the protection they have at a trial is that the lawyers aren’t playing to a constituency, or thinking about what video clip an opponent will replay during a reelection campaign... senators have different motivations and are playing to a different audience... Criminal defense attorney Roy Black told The Post that the problem with the Senate is that lawmakers are prejudiced, one way or the other.
“They all make speeches and then say, ‘What do you think about that?’ ” he said. “They don’t want to ask questions, and their minds are already made up. It’s very ineffectual when you have a real witness.”
.. The Judiciary Committee’s role here is not to determine guilt or innocence but to advise the Senate on whether to confirm Kavanaugh. The committee is not bound by the criminal standard of proving guilt beyond a reasonable doubt, either.
.. If Kavanaugh was charged with attempted rape, there must be proof beyond a reasonable doubt that Kavanaugh tried to rape her, “and that the assault, which happened so many decades ago, went far enough across the line to constitute an attempt,” he said.
.. As a criminal defendant, shielded with the presumption of innocence, Kavanaugh would not be required to testify or put forth any evidence in his defense.
Still, Black said that he would probably call Kavanaugh to the stand.
“He makes a good witness. He’s smart, he’s presentable, he’s articulate, and he’ll categorically deny it, so I don’t see any downside,” Black said.
.. whether Judge wished to testify at a criminal trial would be irrelevant.
.. Ford claimed that Judge was in the room, making him the sole known eyewitness and, therefore, a material witness. The prosecutor bears the burden to prove her case beyond a reasonable doubt, and she would necessarily subpoena Judge, even if it required arresting him and hauling him in. Failing to call Judge to the stand would result in a jury instruction against the prosecution’s case.
.. Judge signed off at Georgetown Prep with a Sir Noel Coward quote in the school’s yearbook: “Certain women should be struck regularly, like gongs.”
.. He has described himself as having had a blackout drinking problem, and his 1997 memoir, “Wasted,” references high school “masturbation class,” “lusted after girls” at other Catholic schools and a “Bart O’Kavanaugh,” who passed out drunk and threw up in a car.
.. “I think Ford may well be telling the truth, but when you’re putting forward a proposition — in a criminal court, the Senate or an administrative hearing — there has to be some way of determining the truth,” he said. “You cannot punish someone on the testimony of one person, saying this happened 30 years ago, with no corroboration.”
‘Incredibly frustrated’: Inside the GOP effort to save Kavanaugh amid assault allegation
But Kavanaugh grew frustrated when it came to questions that dug into his private life, particularly his drinking habits and his sexual proclivities, according to three people familiar with the preparations, who requested anonymity to discuss internal deliberations. He declined to answer some questions altogether, saying they were too personal
“I’m not going to answer that,” Kavanaugh said at one point according to a senior White House official, who said that the questions were designed to go over the line and that he struck the right tone.
.. “The Republicans need women voters, but all hell will break loose (or it will be chaos) if this nomination unravels,” Dan Eberhart, an Arizona-based GOP donor, wrote in an email. “If we can’t get the nomination done, why vote Republican?”
.. Kavanaugh was calling Republicans on the Judiciary Committee and other key allies, urging them to publicly support him
.. In one key call, Kavanaugh told Sen. Orrin G. Hatch (R-Utah) that Ford had the wrong guy in mind, saying he had not attended a party like the one she described to The Washington Post. He and his allies also privately discussed a defense that would raise doubts that the attacker was Kavanaugh, rather than try to dispute that an incident involving Ford had happened.
.. Yet McGahn was originally opposed to a public hearing — as were many within the orbit of Senate Majority Leader Mitch McConnell (R-Ky.) — but it became clear one would have to happen
.. Ford, through her attorneys, said she would be willing to testify publicly, and several potential pivotal votes, such as Sen. Susan Collins (R-Maine) and Sen. Jeff Flake (R-Ariz.), signaled that his confirmation could not move forward unless Ford was given a public airing.
.. McGahn has kept other key aides out of the process, afraid they would leak damaging material, relying on special counsel Annie Donaldson and spokesman Raj Shah. He has also talked on several occasions with McConnell, who is fond of McGahn.
.. His tweet on Friday morning in which he directly targeted Ford was not seen as helpful by White House aides, but Trump told senior officials that it was becoming a political issue that could affect the midterms. Republicans did not believe the woman’s claims, Trump added privately.
.. Republicans have also talked about enlisting female lawyers on the committee, who Grassley said would be “sensitive to the particulars of Dr. Ford’s allegations and are experienced investigators,” to the lead the questioning. They might also help the GOP avoid an optics problem of 11 men grilling a woman about her sexual assault allegation.
The hearing could end “without new conclusive evidence either way,” one senior Republican official said. “Members have to determine their threshold for credibility. And that will be the challenge.”
Senate Republican officials had repeatedly vented in private that it seemed, at least to them, Ford’s lawyers were doing more press than responding to their emails or requests for calls. Her attorneys would return that sentiment in kind, complaining in a late Friday letter to top Grassley aides that they would learn of the Republican hearing counteroffer “through the media” and got it officially through the committee “hours after those media accounts first appeared.” On Saturday they accused GOP senators of “bullying.”
.. Democrats are also plotting their own strategy for the hearing. Furious about Grassley’s decision to limit testimony to just Kavanaugh and Ford, Democratic aides planned to find other potential witnesses — such as a trauma expert — who could help bolster their case.
.. If they couldn’t be heard under oath, Democrats discussed holding news conferences where those other experts would speak, aides said. A top priority, according to Democratic officials, was ensuring Ford felt supported, whether it was having enough friends and family in the hearing room with her or finding people who can speak publicly about Ford’s character.
“We’re not accepting the premise that it’s going to be a he-said, she-said hearing,” one senior Senate Democratic aide said.
.. As for questions for Kavanaugh, Democrats planned to hold nothing back. Democratic staff have been researching the broader culture of the prep academy world in which Kavanaugh lived while reading the writings of Mark Judge
.. Judge, who has said he doesn’t want to testify, has written about how much alcohol he and his classmates consumed while in high school and details about other debaucherous behavior.
.. Democrats also planned to grill Kavanaugh on what he knew about a controversial Twitter thread from Ed Whelan
.. Ford’s July 30 letter outlining the allegations sent to Feinstein and Rep. Anna G. Eshoo (D-Calif.). Republican senators, initially cut off from accessing the unredacted version of the letter, prodded Feinstein repeatedly to hand over her copy so they could conduct their investigation.
.. “They want her to publicly testify . . . but the infamous letter is still not public. They won’t allow it to be.”
‘100 Kegs or Bust’: Kavanaugh friend, Mark Judge, has spent years writing about high school debauchery
describes an ’80s private-school party scene in which heavy drinking and sexual encounters were standard fare.
.. Judge wrote about the pledge he and his friends at the all-male school on Rockville Pike in North Bethesda, Md., made to drink 100 kegs of beer before graduation. On their way to that goal, there was a “disastrous” party “at my house where the place was trashed,” Judge wrote in his book “God and Man at Georgetown Prep.” Kavanaugh listed himself in the class yearbook as treasurer of the “100 Kegs or Bust” club.
.. “I’ll be the first one to defend guys being guys,” Judge wrote in a 2015 article on the website Acculturated. He described a party culture of “drinking and smoking and hooking up.” During senior year, Judge said he and his pals hired a stripper and bought a keg for a bachelor party they threw to honor their school’s music teacher.
“I drank too much and did stupid things,” he said in his memoir.
“Most of the time everyone, including the girls, was drunk,” Judge wrote in “Wasted: Tales of a Gen X Drunk,” a memoir of his alcoholism and recovery. “If you could breathe and walk at the same time, you could hook up with someone.
.. Judge seemed to some friends to stay fixed in the experiences of his adolescence. Over time, his politics shifted from left to right, and his writing often focused on his view of masculinity (“the wonderful beauty of uncontrollable male passion”) and his concern that gay culture was corroding traditional values.
.. In one column for Acculturated, Judge wrote that it is “important that for some brief moments in his life — preferably when he is young — a man should be, at times, arrogant, a little reckless, and looking for kicks.”
.. Maryland state Sen. Richard S. Madaleno Jr. (D-Montgomery), one of Judge’s classmates at Georgetown Preparatory School
.. ‘Bully’ may be an overused term, but he regularly belittled people he perceived as being lower on the high school hierarchy.”
.. I just had an instinct and desire to get into trouble, and science and psychotherapy are useless to explain it. I just liked causing trouble.”
.. Judge has written about his Prep years as a time of drunken debauchery. Beach Week, a summertime excursion with classmates, was a nonstop roller coaster of drinking, sexual encounters with girls from other prep schools, blackouts and more drinking. “It was impossible to stop until I was completely annihilated,”
.. on Monday mornings during senior year, the boys would tell their Marriage and Sex teacher, Bernie Ward, about their excesses.
“The drinking was unbelievable,” said Ward, who later spent two decades as a radio talk-show host in San Francisco and served six years in federal prison for distributing child pornography. “It was part of the culture. A parent even bought the keg and threw one of the parties for the kids.”
.. The faculty at Prep, he said, had morphed from “tough guys” to “hippies and leftists.”
.. “Doctors have called it attention deficit disorder, psychiatrists have cited my behavior as a cry for attention from my distant, drinking father, but at the end of the day I simply had a problem with authority,” Judge wrote in “Wasted.” His behavior when he was drinking was, he wrote, “not dignified.”
.. Judge sent a vituperative email wishing him the same fate as Matthew Shepard, the gay college student who was beaten and left to die in Wyoming in 1998.
.. Judge has described living for years in the basement of his parents’ home in Potomac. Public records list his home at an address in Georgetown that turns out also to be the address of a UPS store.
.. Mark’s brother Michael to write in Washingtonian magazine about how the family “did come to fear one of its members. . . . Mark is a solipsist: spoiled as a child, always gazing inward, unable to recognize any pain but his own.”
.. Judge’s views about men and women seemed grounded in midcentury notions. In his high school yearbook, he cited a Noël Coward lyric, “Certain women should be struck regularly, like gongs.”
.. In 2003, a student named Eric Ruyak reported to school authorities that a Jesuit priest who was a teacher at Georgetown Prep had touched him inappropriately. Some Prep alumni, including Judge, rallied around the teacher
.. Numerous alumni told me that Judge was going around saying I was emotionally unstable and a sexual deviant,”
.. An investigation by Jesuit authorities later confirmed Ruyak’s account. Orr was placed on a leave of absence from his order. When another Prep student later alleged that Orr had sexually abused him, the priest was arrested. He pleaded guilty and was sentenced in 2011 to five years of probation.
“For years, I couldn’t shake Judge,” Ruyak said. “He would write about the case to advance his agenda about the school being a nest of liberalism and homosexuality. This guy did unbelievable damage to me when I was a kid.”
Republicans first said Christine Blasey Ford should be heard. Then they insulted and ignored her.
“In the very near future, Judge Kavanaugh will be on the United States Supreme Court,” Senate Majority Leader Mitch McConnell (R-Ky.) said Friday. “We’re going to plow right through it,” he said. Though Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) has tried to appear more reasonable, his chief counsel for nominations tweeted on Wednesday: “Unfazed and determined. We will confirm Judge Kavanaugh.”
.. The GOP argument boils down to: We doubt the assault occurred, and it is not serious if it did.
.. Is it any wonder Ms. Ford is hesitant to testify before a committee that Republican senators control? They have rejected the route most likely to get at the truth. Ms. Ford asked for an FBI investigation into her allegations
.. Republicans fought back, despite the fact that the FBI is asked routinely to reopen background-check investigations on matters far less concerning and for nominees far less important.
.. Instead, Republicans proposed that Ms. Ford and Mr. Kavanaugh offer testimony before the Judiciary Committee just a week after senators learned about the details of the alleged assault, and without the due diligence any self-respecting investigator would have conducted.
Mark Judge, the man Ms. Ford claims was in the room when the assault occurred, has not been subpoenaed. The same is true of other potential witnesses, all of whom the FBI could have identified and interviewed, subjecting them to criminal liability if they lied.
.. Whatever the underlying truth, Republicans have endeavored to make it a “he said, she said” matter they could quickly bury.
.. If Ms. Ford is telling the truth, she cannot allow Mr. Kavanaugh to repeat his ringing denials unanswered, which would only play into Republican attempts to sweep her accusation under the rug.