By Andrew Barness
The recent allegations made against Brett Kavanaugh are intended as a threat to all Republican politicians and the opposition they pose to the Democratic agenda. America was founded on the principle that a person is innocent until proven guilty. The production of proof for criminal cases is also held to a high standard as is it dictates an individual’s freedom or incarceration. If these recent allegations made against Judge Kavanaugh and the treatment he has received from the committee thus far is at all indicative of the direction our legal system is moving in, Americans can no longer count on justice.
Multiple Senate Democrats including Senator Dick Durbin of Illinois asked Judge Kavanaugh to request President Trump cancel his hearing and issue an FBI investigation. The FBI only conducts interviews to compile case review summaries which are then handed over to federal prosecutors to see if a criminal act has indeed occurred. This can be problematic considering the Democrats are only pursuing this request, because, according to NPR, “It’s a crime to lie to Congress, but lying to the FBI is a whole other matter.” It is true; there are separate punishments which pertain to lying under oath in front of Congress as opposed to lying in an FBI investigation. The whole purpose of FBI interviews is to get the interviewee in a cross-question trap to admit to perjury or lying in an investigation. Also, it is highly inappropriate for a sitting Senator to use a person under oath as a political pawn to force the President’s hand in using his departments to go after a person applying for a job, so shame on those Senate Democrats who hung Kavanaugh out to dry.
In criminal law, to be factually guilty, the jury must be convinced beyond a reasonable doubt the prosecutor has proved corpus delicit (body of the crime). There are five elements of corpus delicit that all must be shown: actus reus (criminal act), mens rea (criminal ‘mind’ or intent), concurrence, causation, and harm. The GOP prosecutor at the hearing on Friday told GOP Senators that from the testimony alone she would not prosecute Judge Kavanaugh. Dr. Ford’s testimony did not show actus reus because the supposed four witnesses at the party have all claimed they could not remember there being a party in the first place. Her testimony, along with Judge Kavanaugh’s claim, “I like beer,” could hint at a reckless mens rea. Note, if a person voluntarily gets intoxicated, the defense in court only works to lower a charge from purposeful to reckless or negligent, but does not absolve someone from liability.
Concurrence is the union of both actus reus and mens rea, so if you do not have one you cannot prove concurrence has happened. Causation is then the union of both factual and legal causation; given my hesitation on actus reus and sometimes mens rea I do not think Dr. Ford has a case so far. Finally, harm is obviously and can always be proven one way or another. Overall, with legal problems posed in the first part of corpus delicti, it will be hard to near impossible for Dr. Ford to convince a judge or grand jury to indict or convict Judge Kavanaugh with criminal liability. There’s also the question of the statute of limitations within Montgomery County because there has yet to be an accuser who has come forth to press the police for a criminal investigation. Also, what Judge Kavanaugh is being accused of was classified as a misdemeanor with a year statute of limitation, according to both Montgomery County’s chief prosecutor and the executive director for the Maryland Coalition Against Sexual Assault.
Even if everything said goes Dr. Ford’s way, it was this summer that Jack Phillips won a narrow decision on his case. The 7-2 decision concluded the Colorado Civil Rights Commission was biased in their committee hearings, that had adjudicating power, and therefore prevented Mr. Phillips’ First Amendment right of Religion and the 14th Amendment’s Equal Protection under the law. Though the Senate Judicial Committee does not have adjudicating powers, the Senate Committee on Ethics does, and even still the Judicial Committee can be given adjudicating powers if specified by the committee chair. One can argue, under the same pretenses of Mr. Phillips, that if the Senators came into the testimony with a clear bias or disregard towards innocence until proven guilty, the Ethics Committee could take over their actions or the hearing may not be entered into the decision process.
Overall, whether you believe Judge Kavanaugh is innocent or guilty, there are serious legal issues presented in the testimony circus on Thursday, and now with President Trump issuing an FBI investigation, things may get even more interesting. Still, Senator Lindsey Graham was spot on when he told Judge Kavanaugh, “You are looking for a fair process, you’ve come to the wrong town, at the wrong time.” Indeed, partisan politics forcing Senator Graham to say, “Boy y’all want power, God, I hope you never get it,” seems like a deja vu of Bork’s confirmation hearing. Thus, politically, this circus will undoubtedly weigh heavily in the midterms for both sides as we become more politically polarized. Lady Liberty is no longer blind in Washington D.C., and this should scare everyone from the judge to the average citizen.