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.”
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.”
Whelan’s claims on Twitter on Thursday evening that Ford might have been assaulted by someone else raised immediate questions about whether he had spoken to or coordinated with Republican leaders about his theory.
.. Whelan has been involved in helping to advise Kavanaugh’s confirmation effort and is close friends with Kavanaugh and Leonard Leo, the head of the Federalist Society, who has been helping to spearhead the nomination.
On Sunday, Ford noticed that — even before her name became public — Whelan appeared to be seeking information about her.
That morning, Ford alerted an associate via email that Whelan had looked at her LinkedIn page, according to the email, which was reviewed by The Post. LinkedIn allows some subscribers to see who views their pages. Ford sent the email about 90 minutes after The Post shared her name with a White House spokesman and hours before her identity was revealed in a story posted on its website.
.. A White House spokesman said Friday that neither Kavanaugh nor anyone in the White House gave Ford’s name to Whelan before it was disclosed by The Post.
.. After The Post contacted the White House for comment Sunday morning, deputy White House press secretary Raj Shah called a number of Trump allies to warn them about the upcoming story
.. He disclosed Ford’s identity to a number of these people but did not talk to Whelan
.. Other White House officials, including McGahn, also made calls
.. Kavanaugh and his allies have privately discussed mounting a defense that would not question whether an incident involving Ford happened, but instead would raise doubts that the attacker was Kavanaugh
.. Whelan also worked for the Senate Judiciary Committee from 1992 to 1995 as a senior staffer to Sen. Orrin G. Hatch (Utah)
.. Shortly after Ford went public with her allegations in an interview with The Post, conservatives began floating the idea that she was misremembering the night of the alleged attack — or mistaking the identity of her attacker.
.. “Somebody’s mixed up,” Hatch told CNN
.. “Mistaken identity is also possible,” the Wall Street Journal’s editorial board wrote Tuesday.
.. Whelan hinted throughout the week on Twitter that he was gathering information that would vindicate Kavanaugh and show Ford “got the wrong guy.”
On Thursday, Whelan posted detailed and unverified exhibits as he identified a possible location for the party where Ford said she was assaulted, including a map, floor plans and photos of a house in Chevy Chase and photos of a former Kavanaugh classmate at Georgetown Preparatory School. The theory was discussed on “Fox and Friends” and promoted by right-wing online media outlets such as Gateway Pundit.
.. Ford dismissed the notion that she had identified the wrong person, saying in a statement late Thursday that she knew both men and had “socialized with” the classmate and once visited him in the hospital.
“There is zero chance that I would confuse them,” she said in a statement.
.. On Twitter and in columns for National Review Online, Whelan has been one of Kavanaugh’s most active defenders, pushing back against those on the right who have suggested he is not sufficiently conservative.
.. Whelan is no stranger to controversy online, having apologized in 2009 for revealing the identityof pseudonymous blogger “Publius” and retracted a post in February 2017 arguing that “liberal judicial activism” contributed to the shooting death of a Whittier, Calif., police officer.
In a Monday conversation with Senator Orrin Hatch of Utah, Supreme Court nominee Brett Kavanaugh denied having attended the house party where he is alleged to have assaulted Christine Blasey Ford, leading Hatch to suggest that Ford must be “mixed up,”
..Believing that her identity would eventually leak, Ford then came forward as the letter’s author in a Sunday Washington Post article.
.. “I have never done anything like what the accuser describes — to her or to anyone,” Kavanaugh said in the statement. “Because this never happened, I had no idea who was making this accusation until she identified herself yesterday. I am willing to talk to the Senate Judiciary Committee in any way the committee deems appropriate to refute this false allegation, from 36 years ago, and defend my integrity.”
.. Hatch told CNN that he believes Kavanaugh’s denials and, when asked if he believed the accuser, suggested she may have mistaken him for someone else.