Why Brett Kavanaugh Should Sue Christine Blasey Ford For Defamation

Why Brett Kavanaugh Should Sue Christine Blasey Ford For Defamation

The Senate hearing involving Christine Blasey Ford’s accusations against Brett Kavanaugh ended in a he-said/she-said impasse. A defamation lawsuit might remedy that.
Chris Murray
By

The controversy over Brett Kavanaugh’s confirmation to the Supreme Court didn’t end when he was sworn in. Christine Blasey Ford’s accusations will haunt Kavanaugh for the rest of his career. Critics say his elevation to the court will cast a shadow of illegitimacy over the institution for years to come.

This is why Kavanaugh should consider suing Ford for defamation now: Not to retaliate or seek damages, but in the public’s interest. The Senate Judiciary Committee’s proceedings involving Ford’s accusations left many observers unsure what to think. Also, a defamation case would give both Kavanaugh and Ford access to judicial procedures—document requests, interrogatories, subpoenas, depositions, location inspections—for discovering the truth.

Consider the Precedent in Hiss Versus Chambers

There is precedent for such a case: the Hiss-Chambers slander suit. On August 3, 1948, Whitaker Chambers testified before the House Un-American Activities Committee (HUAC) that Alger Hiss, a former high-ranking government official, was a Communist. Two days later, Hiss appeared before the same committee to deny the Chambers’ accusations. The men’s competing testimony resulted in a he-said/he-said stalemate.

Hiss challenged Chambers to make his accusations again outside the safety of a legislative hearing where Chambers’ testimony had been privileged. So on August 27, 1948, Chambers gave a radio interview and repeated his assertion that Hiss had been a Communist.

Hiss promptly sued Chambers for defamation. When Hiss’s attorney took Chambers’ deposition, he demanded that Chambers produce “any correspondence, either typewritten or in handwriting, from any member of the Hiss family.”

To the attorney’s surprise, Chambers complied. He retrieved an envelope hidden for ten years in a relative’s home containing typed and handwritten notes from Hiss. The materials, which included stolen State Department information, appeared to confirm Chambers’ testimony and show Hiss had engaged in espionage during the 1930s.

Hiss’s defamation suit failed, Chambers was vindicated, and Hiss was ultimately convicted of perjury. Where the congressional hearings had been inconclusive, the civil defamation case had helped uncover the truth.

Apply this to Kavanaugh v. Ford

The Senate hearing involving Ford’s accusations against Kavanaugh similarly ended in a he-said/she-said impasse. A defamation lawsuit might remedy that.

Ford has already made her accusations outside the privileged setting of a congressional hearing. In September 2018, in an interview she gave to the Washington Post, Ford accused Kavanaugh of having assaulted her. She stated that he pinned her on a bed, groped her, ground his body against hers, and attempted to remove her clothing. She described him as “trying to attack me” and putting her life in danger by covering her mouth to prevent her from screaming.

Defamation is a false statement that exposes a person “to public scorn, hatred, contempt or ridicule, thereby discouraging others in the community from having a good opinion of, or associating with, that person.” A statement that falsely charges a person with the commission of a crime or immorality is considered defamatory “per se” and presumed to cause injury.

The conduct Ford attributed to Kavanaugh was clearly criminal. Ford’s statements about Kavanaugh, if false, would undoubtedly be defamation per se.

Believing Accusers Versus Due Process

In a defamation suit, Kavanaugh, as a public figure, would need to prove that Ford’s statements were false and that Ford made them knowing they were false or with reckless disregard as to whether they were false. One objection to filing a defamation claim might be that it contends a woman who alleged sexual assault lied.

The humane response to someone disclosing she is the victim of sexual assault is sympathy, comfort, and support. And victims must be encouraged to pursue justice.

At the same time, when one person accuses another of a crime seeking punishment, due process must be observed. An accused should be permitted to test an accuser’s claims, including through cross-examination, which the Supreme Court has called the “greatest legal engine ever invented for the discovery of truth.”

Ford came forward to block Kavanaugh’s confirmation, a form of punishment. It is not an insult to Ford or other accusers to adhere to standards of due process in these circumstances, which a defamation suit could supply. Fair-minded observers will acknowledge that not all accusations of sexual assault turn out to be true. Consider the case of Jamie Leigh Jones.

The Judiciary Committee and Spectacular Lies

On October 7, 2009, Jones appeared before the Senate Judiciary Committee, the same committee before which Ford testified. Jones, already well known from media appearances, told the committee she had been drugged and gang-raped while working for a defense contractor in Iraq.

Reading from a prepared statement as Ford did, Jones described in detail how several male co-workers offered her a spiked alcoholic drink on her fourth day on the job. After that, she said, she remembered nothing until she awoke the next morning in her room, “naked, sore, bruised, and bleeding.” Jones explained to the senators that when she went to the bathroom that morning, the “evidence that I had been raped was abundantly clear to me.”

Jones further described how “a rape kit confirmed that I had been assaulted both vaginally and anally by multiple perpetrators.” She told the senators that the “severity of [her] physical injuries” required her to return to the United States, where she learned “that [her] breasts were disfigured and [her] pectoral muscles had been turned” as a result of the attack. “Reconstructive surgery was required,” she said.

Jones sued her employer for the sexual assault, and in 2011, a federal jury determined Jones likely lied.

Sen. Al Franken praised Jones for her courage, persistence, and strength. “You are an amazing young woman,” he told her. Based in part on Jones’ testimony, the Senate enacted the “Franken Amendment,” placing new restrictions on defense contractors. Meanwhile, as Stephanie Mencimer writes in her comprehensive account of Jones’ case, the “thirty white, male Republican senators who voted against [Franken’s amendment] were vilified in the media as rape apologists, lampooned on Jon Stewart’s The Daily Show, and mocked on a parody Web site, www.republicansforrape.org.”

After all this, something surprising happened. Jones sued her employer for the sexual assault, and in 2011, a federal jury determined Jones likely lied. Mencimer, a staff reporter for Mother Jones, dove into the trial evidence following the verdict to try to make sense of the result. With admirable candor, Mencimer writes that she found “[t]he trial record was so at odds with Jones’s public story that I was simply dumbfounded.”

According to Mencimer, the evidence at trial included Jones’ rape kit (which was not consistent with Jones’ accusations), medical tests and examinations (which showed no date-rape drug in her system, no torn pectoral muscles, and no deformities), contemporaneous emails and text messages, co-worker testimony, expert testimony, and photographs.

Key evidence also included Jones’ medical history. That evidence showed Jones, before the alleged attack, had experienced psychosomatic symptoms, among other conditions. She had also claimed on at least three prior occasions to have been raped, although she’d never filed charges. Also, an independent examination by a forensic psychologist concluded Jones had faked symptoms of post-traumatic stress syndrome and had a narcissistic personality.

In the end, the jury, even applying the lower “preponderance of the evidence” standard of proof that governs civil trials, concluded Jones had not been raped. The court ordered Jones to pay the defendant’s court costs of $145,000. Putting the case in some context, Mencimer observed:

[T]here’s a strange paradox about sexual assault. The crime is massively underreported to law enforcement, but at the same time, a fair number of people lie about it. The best official estimates suggest that between 8 percent and 10 percent of all rape claims are false. And unfortunately, sometimes when people lie about rape, they lie spectacularly. Crystal Mangum did so in 2006 when she brought charges against members of the Duke University lacrosse team. Tawana Brawley did so in 1987 when, as a teenager, she nearly sparked race wars in New York by falsely accusing six white men, including police officers and a prosecutor, of raping her.

To this list can be added the case of “Jackie,” reported the following year by Rolling Stone, when a woman falsely accused men of gang rape at a University of Virginia fraternity.

Just because some accusers have lied about being sexually assaulted obviously doesn’t mean Ford or any other accuser has lied. But that’s the point of due process: no case should be pre-judged, and each case should be decided on its own merits.

As for Impressions of ‘Witness Credibility’

To assess witness credibility, one usually must observe the witness. Yet Ford’s account during the confirmation process was presented to the world almost entirely through her attorneys. She appears to have spoken directly in a single print interview with the Washington Post.

The only time the public saw Ford was during her Judiciary Committee testimony. Even then, her core allegations were written, perhaps with aid of counsel, and she read them aloud. She answered questions for just a short time. These came in five-minute increments for a cumulative time of about an hour. After that brief appearance, Ford again receded from public view behind the impenetrable wall of her legal representation.

A defamation case would allow Ford to testify at greater length, telling her story directly in her own words. She would likely sit for a deposition for a minimum of seven hours and testify at trial for at least that long. Such testimony would provide a far better chance to see and hear her and evaluate her credibility.

Falsus in Uno, Falsus in Omnibus?

During the committee hearing, Sen. Richard Blumenthal noted the concept of “[f]alsus in uno, falsus in omnibus” (i.e., “false in one thing, false in everything”). Under this principle, factfinders may doubt a witness’s general credibility based on a single lie.

Senate questioner Rachel Mitchell’s examination may have provided some glimpses into Ford’s credibility generally. Although Ford stated she feared flying (which was relevant because her attorneys said she was unable to fly to Washington D.C. the prior week to meet with the committee), she flew to Washington D.C. for the September 27 hearing. Was this “falsus in uno”?

We also learned Ford consulted with Sen. Dianne Feinstein’s office about retaining attorneys and took a polygraph test in August, a time she said she still was assuming she would not go public with her accusations. That chronology does not seem to make sense. A defamation suit would allow attorneys to pick up where Mitchell left off and elicit more testimony on such matters.

Psychotherapy Records, Swords, and Shields

A defamation lawsuit also would allow the parties to conduct discovery of relevant documents. Among the key evidence missing from the committee proceedings were Ford’s psychotherapy records. Attorneys could seek those records in a defamation suit. Typically they would be protected by the psychiatrist-patient privilege. But Ford appears to have waived that privilege.

Parties aren’t allowed to game the system by revealing just the privileged evidence they think helps their case.

Generally parties cannot use a privilege, such as the attorney-client privilege or psychiatrist-patient-privilege, as both a sword and a shield. That is, a party cannot selectively disclose some privileged communications to support his case but invoke the privilege to avoid disclosing other communications of the same type. Parties aren’t allowed to game the system by revealing just the privileged evidence they think helps their case.

Ford appears to have violated that principle. In September, when the Post interviewed Ford, she said she first revealed the alleged attack from Kavanaugh during a couple’s therapy session in 2012. According to the article, portions of Ford’s therapist’s notes “were provided by Ford and reviewed by The Washington Post.” The Post article also referred to notes from a subsequent, individual therapy session “the following year,” in which Ford discussed a rape attempt in her late teens.

Ford used her psychotherapy notes to give credibility to her accusations by showing she mentioned an alleged attack before Kavanaugh was nominated in 2018. But the rest of her psychotherapy records may also reflect on her credibility. Ford’s attorneys refused to share those records with the Judiciary Committee, claiming they “contain private, highly sensitive information that is not necessary for the Committee to assess the credibility of her testimony.”

That argument likely would not fly in litigation. Ford has already disclosed the psychotherapy records to others. By waiving the privilege, those records would appear to be discoverable in any defamation suit.

As for Other Witnesses and Documents

A defamation suit would also allow the parties’ attorneys to take the depositions of other witnesses and seek other evidence missing from the public record. Such discovery might cover Ford’s communications with politicians and other third-parties and her complete polygraph results. A deposition of Leland Ingham Keyser, the friend Ford says attended the small party where Kavanaugh allegedly attacked her, would also be illuminating.

Attorneys could also seek to learn more about the renovation Ford made to her home. She testified she wanted a second front door added due to the trauma she still suffers from Kavanaugh’s alleged attack. A media report, however, suggests that Ford may have added a door to her home between 2008 and 2010 to create a sub-unit in the house to rent out. Building permits, rental records, and witness testimony might provide valuable insight on this issue.

Solving a Political Enigma

Finally, a defamation case would allow for exploration of Ford’s political commitments, if any. Such evidence would be relevant to whether Ford might have any motive to make a false accusation.

The known timeline raises some questions. Ford explained she referred to an alleged attack by Kavanaugh for the first time ever in May 2012 in a therapy session. That was during Mitt Romney’s presidential run, and just two months after Jeffrey Toobin, on March 26, 2012, published an article on Kavanaugh in The New Yorker. Toobin predicted a disastrous future if Kavanaugh ever joined the Supreme Court.

On May 30, 2012, the same month Ford first revealed the alleged attack in a therapy session, The New York Times wrote about an advocacy group’s aggressive ad campaign targeting Romney. Those ads contended Romney would “deny women access to birth control, abortions and equal pay for the work they do,” presumably based in part on his expected Supreme Court nominations.

On November 5, 2012, between Ford’s first and second therapy sessions mentioning an alleged attack by Kavanaugh, an ad ran on Facebook imagining a world in which Kavanaugh had been appointed to the Supreme Court. The ad contained a Photo-Shopped front page from The New York Times announcing: “High Court Overturns Roe v. Wade 5-4.” Below the headline were pictures of the Supreme Court justices. On the top row left was Kavanaugh.

The fictional Times article explained the Supreme Court majority overturning Roe consisted of Chief Justice Roberts, who joined the court’s “three staunch conservatives and newcomer Justice Kavanaugh” (emphasis added).

When Ford began reaching out to the Post and politicians to share her accusations against Kavanaugh in 2018, was it significant in Ford’s mind that these 2012 political predictions appeared to be playing out? Would Ford have objected to Kavanaugh’s presence on the Supreme Court on ideological grounds even if she had never met him? This might be a relevant subject for inquiry in any defamation suit.

The Judiciary Committee proceedings were not a trial. By their nature, they could not develop a full evidentiary record or give the public an adequate opportunity to evaluate Ford’s accusations against Kavanaugh.  But a defamation lawsuit now might do so, allowing both Kavanaugh and Ford the opportunity to seek and produce all of the evidence they believe is relevant. For the public good and the benefit of history, Kavanaugh should seriously consider filing such a suit, and Ford should welcome it.

Chris Murray is an attorney who defends parties accused of wrongful conduct in civil litigation.

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