The Lies That Could Still Sink Brett Kavanaugh

This story is being co-published with Capital & Main

Only the shaken confidence in Brett Kavanaugh by four senators stands in the way, Saturday, of the Supreme Court nominee's lifetime appointment to the nation's highest court. Republicans Jeff Flake, Susan Collins and Lisa Murkowski, and Democrat Joe Manchin will have little more on which to base their votes than the words of Kavanaugh himself versus those of his various accusers.

Below are six of the main lies Kavanaugh is accused of telling under oath, followed by a discussion with three legal experts of his behavior. The feature ends with a list of 13 other alleged lies, with thanks to GQ, the New York Times, Vox, the Washington Post, and Current Affairs.

1. May 9, 2006, SJC nomination hearing to the DC Circuit Court of Appeals, response to Senator Richard Durbin (D-IL) and the late Senator Ted Kennedy (D-MA), again about his knowledge of the "Memogate" emails.

"I'm not aware of the memos, I never saw such memos that I think you're referring to. I mean, I don't know what the universe of memos might be, but I do know that I never received any memos and was not aware of any such memos."

Distance from the Truth: Kavanaugh made the denial under oath multiple times to committee members. Senator Patrick Leahy (D-VT), however, recently posted confidential emails on Twitter that he says were in Kavanaugh's possession, proving his previous denials are, Leahy wrote, "just FALSE!"

2. May 9, 2006, SJC hearing on Kavanaugh's nomination to the DC Circuit Court of Appeals, response to Senator Durbin (D-Ill.) about the judicial nomination of William Haynes, the Pentagon's director of torture policy during the George W. Bush administration.

"I was not involved and am not involved in the questions about the rules governing detention of combatants or—and so I do not have the involvement with that."

Distance from the Truth: Kavanaugh has since been doubly implicated, both in significant involvement with Haynes' judicial confirmation for Bush and in having a hand in Bush detention and interrogation policies. Newly discovered emails from 2002 prove the former, Senate Democratic Whip Dick Durbin (D-IL) charged last month, and "show that Kavanaugh played a substantial role in the decision to nominate Haynes."

3. September 27, 2018, Senate Judiciary Hearing, on explaining partying activities during the summer of 1982.

"I never attended a gathering like the one Dr. Ford describes in her allegation."

Distance from the Truth: Both Kavanaugh's later testimony and his personal calendars detail attending parties throughout the period of the alleged assault, uncannily similar to the one Christine Blasey Ford describes.

4. April 27, 2004, SJC confirmation hearing of Kavanaugh to the DC Circuit Court of Appeals, response to Senator Orrin G. Hatch (R-UT) on whether as Associate White House Counsel he had direct knowledge of Memogate memos stolen from Democrats on the Judiciary Committee and leaked to the White House.

"No. Again, I was not aware of that matter in any way whatsoever until I learned it in the media."

Distance from the Truth: Kavanaugh made the denial under oath multiple times to committee members. Senator Patrick Leahy (D-VT), however, recently posted confidential emails on Twitter that he says were in Kavanaugh's possession, proving his previous denials are, Leahy wrote, "just FALSE!"

5. September 27, 2018, Senate Judiciary Hearing, denying a New York Times report that "Renate alumnius" [sic] on his yearbook page was a sexual boast.

"That yearbook reference was clumsily intended to show affection, and that she was one of us…It was not related to sex."

Distance from the Truth: Sean Hagan and three other former Georgetown Prep students counter that the reference was intended as degrading, albeit unsubstantiated. "So angry. So disgusted. So sad. Integrity? Character? Honesty?" Hagan posted on Facebook after the testimony.

6. September 27, 2018, SJC hearing, response to Senator Amy Klobuchar (D-MN) about whether he "drank so much that you didn't remember what happened."

"But I did not drink beer to the point of blacking out… Passed out would be—no, but I've gone to sleep, but—but I've never blacked out."

Distance from the Truth: Former Yale freshman roommate James Roche: "I saw him both what I would consider blackout drunk, and also dealing with the repercussions of that in the morning."

Capital & Main asked congressional committee veterans and a former federal prosecutor to examine Kavanaugh's September 27 testimony, as well as additional statements flagged by journalists as probable Kavanaugh mistruths. They were asked if the nominee's character, temperament and credibility under fire warrant his elevation to the Supreme Court.

Former assistant U.S. attorney Nick Akerman

"[Kavanaugh] came out with an opening statement that basically tried to take away the committee's ability to really cross examine him," says trial lawyer and former assistant U.S. attorney Nick Akerman. "Because, I think, he realized that if he left himself open to being questioned by committee members and open-ended cross examination, he'd wind up getting himself into trouble — exactly as he did."

Akerman cut his prosecutorial teeth in the 1970s with the Watergate Special Prosecution Force under Archibald Cox and Leon Jaworski. Any kind of "he said, she said" equivalence between Blasey Ford and Kavanaugh during the hearings, Akerman argues, quickly foundered on the wealth of persuasive detail in Blasey Ford's account that was made even more compelling when it dovetailed with the personal calendar that Kavanaugh introduced as supposedly exculpatory evidence.

"I don't think Kavanaugh realized what he was doing," Akerman says. "I mean, the fact that he tried to keep [the possible party date] to a weekend as opposed to a weekday during the summer is a bit ridiculous. There's just enough little details in there that when you start adding them up all point towards him lying. This is somebody who should not be on the U.S. Supreme Court."

Former Rep. Elizabeth Holtzman

When Akerman was building cases against all the president's men, Elizabeth Holtzman was holding Richard Nixon accountable for his abuses of executive power and for flouting the Constitution. As a first-term congresswoman from New York City serving on the House Judiciary Committee, she cast key impeachment votes against Nixon. Like Akerman, Holtzman also notes the contradictions around Kavanaugh's interpretation of the calendar in his testimony, but what really stands out to her is how loosely, she says, Kavanaugh plays with facts.

"First of all, there was no left-wing conspiracy," she says. "If you listen to Dr. Blasey Ford, you know that she was a very reluctant witness, and this was not an effort to undo a conservative appointment; it was to let people know about what he had done. … His claim that there was no corroboration also wasn't true. Because there is corroborative testimony — testimony that she gave about her therapist, that she told the therapist, that she told her husband; there may be other people that she told."

Kristine Lucas, Leadership Conference on Civil and Human Rights

Kristine Lucius, executive vice president of policy for the Leadership Conference on Civil and Human Rights, which opposes the nomination, has been through her share of confirmation fights. But her experience as the legal and policy adviser to the former Senate Judiciary Committee chair, Democrat Patrick Leahy of Vermont, did not prepare her for what played out at last week's hearing.

"What we saw in Brett Kavanaugh's testimony was someone belligerent and vindictive, and threatening and partisan," Lucius says. "Even setting aside the significant sexual assault allegations, I have real concerns about how the Supreme Court will be viewed if he is confirmed."

Holtzman also expresses concern on this point.

"He said, 'What comes around, goes around' — and that's a kind of a threat," Holtzman says. "Is he threatening the people that support Dr. Blasey Ford? Is he threatening the Democrats? Is he threatening people who oppose his nomination? Who is he threatening? We don't need a Supreme Court justice who is going to use his position to get revenge."

Lucius recalls past confirmation fights from her time with the Judiciary Committee, when past drug use or a sexual allegation would sometimes surface in her background briefings of a nominee for committee members. What never seemed to emerge was a consistent standard of concern by senators. It was at such moments that she saw confirmation votes as a "decency test" for each individual member.

"This is 100 percent on the shoulders of the senators," says Lucius. "They are deciding what the standard is going to be for the highest court in the land. And that has as much to do with their institutional role as [it does] their own moral compass."