Judge Brett Kavanaugh’s willingness to say he’s been exonerated by witnesses who say only that they don’t remember ought to suffice to disqualify him. But such an obvious, transparent lie is allowed in processes like these. Lies about the readily apparent fall under the penalty not of felony but of politics.
Clearly, it will take a different category of dishonesty to meet the standard set by Sen. Jeff Flake (R-AZ) when he promised that any new dishonesty would doom Kavanaugh’s hope of sitting on the high court. But in that regard, too, Kavanaugh has already shown a powerful propensity for lies that, stripped of their evidentiary context, would be glaring and laughable.
Consistently, whenever Kavanaugh knows that a line of questioning will lead to an accusation of wrongdoing, he plants his denial at the start of the path, no matter how innocuous. This does not validate the underlying accusation, but it does reveal a strong and repeated effort to prevent interrogation of the murky middle ground along that path.
Others have dissected ably the dishonesty of Kavanaugh when he appeared before the Senate on September 27th. But his statements by phone to Senate staffers have not received the same level of scrutiny (which is not to say that others haven’t addressed some of them).
Others have already noted that text messages first reported by NBC News show that Kavanaugh’s team knew about the allegations of Deborah Ramirez prior to their publication in a New Yorker article—despite his denial on Sept. 25.
But even on the 25th, Kavanaugh himself changes his answer just a couple minutes after saying he never heard about it until the New Yorker piece. He offers on his own that he heard about Ramirez attempting to find corroborating witnesses.
Maybe Kavanaugh was responding to the apparent intent of the question, insinuating that the allegation is less credible because no one was talking about it. But the effect of his denial is to conceal the existence of his prior, untranscribed conversations with committee staff about the allegations.
Kavanaugh, for instance, at one point reveals that he’s been informed about the Rhode Island allegations. Kavanaugh couldn’t have heard about them from classmates—because they were fabricated. And, in any event, Kavanaugh’s question reveals that he knows the Senate staff knows about them, too.
Such communications aren’t illegal or unethical, but to Washington insiders, they belong to another realm, one where strategy and talking points roam the land freely without fear of exposure.
At a minimum, Kavanaugh has internalized the border around this realm to the extent that what happens there doesn't exist when he speaks on the other side. “What happens at Georgetown Prep…” (As we reported, Kavanaugh's ethos of secrecy was shared by three of the classmates who attested to his good character.)
Kavanaugh’s evasiveness about drinking has been thoroughly dissected. But it’s worth looking at the role that Senate staff played in abetting it. At no point is he ever asked what is the most that he drank. He’s given wiggle room courtesy of questions that facilitate difficult-to-refute answers.
Even with the help, Kavanaugh is openly evasive. How much did he drink? Beer. The amount of alcohol he drank is beer. Now consider the follow-up question.
The question, helpfully to him, is inartfully phrased. The questioner could have stopped with “drink to excess,” but added a narrowing, extreme, and difficult-to-refute qualifier. And why not just say, “to the point that you DID black out?” “Would have” muddies it in a way that makes it easier to define in a deniable way. And “blacked out” is never defined—does it refer to passing out or to memory loss? Kavanaugh doesn’t ask for clarification and doesn’t give it. The answer…to whatever…is no.
Both media and Senate staff have engaged in linguistic and definitional sloppiness, of which Kavanaugh has taken full advantage. His defenders have, too. Muddy question plus muddy answer means it can be interpreted at will.
Here’s Tim Carney, claiming that Kavanaugh never denied drinking to excess. And Carney’s right, if you interpret the question as “Have you ever blacked out?”
Where is the quote of him saying he did drink to excess? I feel like reporters are fact checking paraphrases.— Tim Carney (@TPCarney) October 2, 2018
And when Senate staff can't muddy the questions, Kavanaugh muddies both question and answer. Prosecutor Rachel Mitchell asked him a simple question: “Have you ever passed out from drinking?”
Kavanaugh’s answer is fairly brilliant in its injection of wording that appears to represent fumbling for an answer, but semantically clears a narrow path for him to assay something like a truthful answer. He says, “I — passed out would be — no, but I’ve gone to sleep, but — but I’ve never blacked out. That’s the — that’s the — the allegation, and that — that — that’s wrong.”
There’s a lot going on here. He starts to say that “passed out” would be…something. We don’t know what it would be, but having introduced that unknown, the “no” that follows it can now serve as a response to whatever it is that “passed out would be” rather than to Mitchell’s question. His pivot gives us two by-now-classic Kavanaugh evasions. “No, but I’ve gone to sleep” is Kavanaugh’s habit of denying behavior when it’s expressed as outlier behavior until he can rephrase it as something benign (Full disclosure: This reporter, too, has gone to sleep.)
The other Kavanaugh pivot is to restate the question more to his liking, and then answer that one. In this case, he asserts that the allegation is blacking out, which he denies. Without defining what he means by “blacking out.”
When it comes to sex, Kavanaugh exhibits similar tendencies in his answers. By this point, Kavanaugh has shed his choir boy image. He now uses the profligacy of his dating life to make plausible the memory lapses that help block off paths he doesn’t want to go down.
Most people could probably tell you if they ever at least made out with a girl from a school they claimed did not loom large in their social circle. But on Sept. 17, Kavanaugh can’t remember whether he ever had any sexual contact with a Holton Arms girl.
His uncertainty about Holton Arms hints at the likelihood that he went and/or made out with several girls in high school. He explicitly says he had a girlfriend until June of 1982, then another one later that year, and went out with some girls in between.
Which is fine. His promiscuity isn't the point. The point is that, despite the number of encounters, he still maintains he is absolutely certain about whether he ever so much as made out with a drunk girl.
In other words, he went to parties where he and others drank too much, can’t remember whether he ever had sexual contact with anyone from Holton Arms but if he did he knows he never so much as made out with her when she was drunk…because he never made out with any drunk girl at the parties where he and others drank too much.
In fact, not only did this high-school student who sometimes drank too much never make out with someone else who drank too much, he never even had sexual intentions toward women at these parties. Nor, he says, did he ever help his friend, Mark Judge, pursue women for sex.
Clearly, Kavanaugh is heading off the question’s ultimate destination of rape. But in doing so he denies the question’s explicit starting point of interest, targeting women for (potentially consensual) sex, which is not credible.
Kavanaugh utilizes now-familiar tactics regarding Judge’s presence during sexual activity. Asked on the 25th about gang rape, Kavanaugh denies it, but then of his own volition expands the denial before stopping himself and rephrasing it.
Kavanaugh first leans on participation. Then, when he introduces the concept of whether sexual activity ever happened with more than two people “present”…he rephrases again. He says “In other words” he’s never had a threesome, but those aren’t just other words, that’s another meaning. He changes his answer to deny a threesome…while claiming the same answer is also responsive to whether three people have been present during sexual activity. Maybe he's never had a threesome, but he's now made it unclear whether he's been one of three people present during sexual activity.
There are other examples, better covered elsewhere. The country club’s location, for instance, varies depending on what end it serves. In a Sept. 17 exchange, Kavanaugh doesn’t even need a defintion for “near” to know he never attended a party fitting that definition.
Similar to Kavanaugh’s claim that he is defending women by attacking senators for addressing their allegations, Kavanaugh also comes to the defense of his former roommate, James Roche. Asked why Roche would lie about him, Kavanaugh says he doesn’t want to speculate.
On the face of it, it sounds like he doesn’t want to tarnish Roche’s good name. But Kavanaugh’s account of the toxic roommate relationship strongly implies that it wasn’t just the third roommate who was unpleasant toward Roche: Kavanaugh was, too. If that’s the case, Kavanaugh’s reticence doesn’t shield Roche, it shields Kavanaugh.
There are other examples along the same lines: Denying banal behavior when it's presented as the first step in a threatening line of questioning; rephrasing questions to taste; stumbling, halting answers that introduce enough interpretability to enable something akin to honesty; facilitation by his interrogators.
Again, the point is not that any one falsehood should damn Kavanaugh. Any of them should suffice. The larger point is that every single time he’s fuzzy it helps him. If his memory or inapt phrasing occasionally opened the door to more serious allegations, then he could credibly be seen as clumsy in his wording. But when every instance, no matter how anodyne the question, leads us away from suspicion, we have to conclude it leads us also away from the truth.
You can reach Managing Editor Jonathan Larsen on Twitter here.