Judge Kavanaugh And A Committee's Pursuit Of The Truth
Rep. Julio Gonzalez, M.D., J.D.
Early Saturday, the Senate Judiciary Committee and Judge Brett Kavanaugh's accuser, Dr. Christine Blasey Ford, reached a tentative agreement about an appearance before it. The details of the agreement have not been released, except that the hearing would be held on Thursday. Although it has been said that Senate Judiciary Committee Chairman Chuck Grassley has laid out terms unfair to Blaisey Ford and insensitive to the plight of women, in reality the truth of the matter cannot be sought without these conditions, and Blaisey Ford should welcome Grassley's conditions as it will help to ensure her credibility; provided of course, she is being honest.
First, it is imperative that Blasey Ford speak under oath. The charge against Judge Kavanaugh is extremely serious, about as serious as it gets. Thus every effort must be made to ascertain the veracity of the information provided. Recall there is no corroborating evidence, no witnesses having first hand knowledge of the situation (or second hand for that matter), no forensic evidence, and no physical evidence. In short, this case comes down to the strength of Blasey Ford's word against that of Judge Kavanaugh's, making it crucial that the veracity of Blasey Ford's comments be established.
Placing Blasey Ford under oath is the only way society has to help guarantee the veracity of her testimony. Without the weight of an oath, Blasey Ford would be free to say anything she wants without legal consequences. Her testimony could be a complete work of fiction, and no one would know any better, nor would there be any legal ramifications to her having delivered it.
But when Blasey Ford is placed under oath, she is legally ascertaining the information she gives is true to the point of being subject to perjury should she fail to tell the truth. Although, as a lawyer, I advise anyone to not voluntarily place himself or herself under oath (even when that person is innocent) here Blasey Ford must place herself under oath if she is to be believed.
Blasey Ford is not under investigation, so no charges should be placed against her so long as she tells the truth. On the contrary, she is calling for an investigation of another under circumstances where no other evidence exists. She must, therefore, deliver her testimony under oath if her charges are to stick. The protections for her lie in the limitations of the scope of the inquiry, the topics to be covered.
All topics and subtopics regarding the Kavanaugh allegations must be on the table, inclusive of any social media posts, whether they be favorable or unfavorable. Obviously, it would be reasonable to demand that no other topics, such as Blaisey Ford's finances, or matters that would subject her to possible litigation in other arenas, be examined, as she ought not be placed in a situation where she self-incriminates. But, if Blaisey Ford's accusations are sincere, then Blasey Ford should welcome the opportunity to tell her story under oath rather than resist it. For this reason, it would also be prudent for Blaisey Ford's attorney, Debra Katz, to be present at the hearing so she may object to inappropriate questions. Although Chair Grassley would be the ultimate arbiter of whether the question stands or not, Blaisey Ford ought to be able to refuse to answer, the consequence of her doing so in the face of a valid question is the undermining of her credibility.
Grassley's second requirement is that Blasey Ford deliver her testimony first. This is as important as speaking under oath, and it is the only logical sequence of events if we are to assume that Kavanaugh is innocent until proven guilty. Absent such a chronological sequence the judge has no concrete understanding of the charges before him and would be unable to appropriately defend himself.
And the accusation ought to be made before Judge Kavanaugh. This is not an intimidation tactic, nor is it merely a hypothetical issue. Being required to appear before the person one is accusing serves as an added check upon the veracity of the testimony as it is much more difficult, at least for many of us, to falsely accuse someone when doing so in the accused's presence.
Finally, the opportunity for questioning by the members of the tribunal is absolutely essential. In law, the most effective tool in deciphering the truth of the matter asserted is the opportunity to cross-examine a witness; under oath! Yes, in the Senate Judiciary Committee there is no provision for a real cross examination, but the inquiries of the full members of the Committee, many of whom are lawyers, should at least partly make up for that and ought to be effective at revealing any inconsistencies, if any, in Kavanaugh's and Blasey Ford's testimonies. It is impossible to tease out the facts without it.
Yes, it is important that Dr. Blasey Ford be heard. However, it is even more important that the truth be ascertained. Such a goal, the only one that matters, may only be accomplished if Chair Grassley insists on the conduct of a hearing in a manner designed to elicit the truth. Senator Grassley ought to stick to his guns on these provisions, and Dr. Blasey Ford ought to welcome them. Otherwise, better not to hold the hearing at all.
Dr. Julio Gonzalez is an orthopaedic surgeon and lawyer living in Venice, Florida. He is the author of The Federalist Pages and serves in the Florida House of Representatives. He can be reached through www.thefederalistpages.comto arrange a lecture or book signing.