Are Republicans About To Confirm A Perjurer To SCOTUS? Hey, Shit Happens!
So, some interesting developments in Brett Kavanaugh's confirmation hearing, eh? It just looks like maybe Democrats on the Judiciary Committee have kind of caught him out in a few little instances of perjury in his 2004 and 2006 confirmation hearings for the DC Court of Appeals, his current job. Lying to Congress used to be kind of a major deal, but then, that was a long time ago, and the Republicans really, REALLY want to get this new guy on the Supreme Court so he can end abortion (and birth control!) and also investigations of Donald Trump, so let's not get too excited about the idea of a Supreme Court Justice who probably committed perjury, OK? Heck, they were only little lies about questions asked to him under oath, and surely we can overlook a bit of dishonesty in the name of Justice, huh? It's not like any of the lies involved his penis, after all. As far as we know.
There's just a WHOLE BUNCH of matters it now looks like Kavanaugh lied about in his earlier confirmation hearings. Rather than get too deep into the weeds, we will summarize, so as to preserve your already shell-shocked noggins from even more "HOLY SHIT!" whiplash.
1. (Bill) Pryor Restraint
This is a big one! In 2004, Kavanaugh testified he hadn't been involved in the vetting or the preparation for Senate testimony of Bill Pryor, George W. Bush's nominee to the 11th Circuit Court of Appeals. He told Sen. Ted Kennedy,
"I am familiar generally with Mr. Pryor, but that was not one that I worked on personally," Kavanaugh testified then, although he noted during the hearing that he knew Pryor. Upon further questioning, Kavanaugh said: "I was not involved in handling his nomination."
That sounds like a pretty definitive NOPE. Which makes it pretty darn weird that several emails released in the Dems' Great Big Spartacus-Off Thursday are all about Kavanaugh's participation in vetting and prepping Pryor. Dianne Feinstein was all, LOOK! DOCUMENTS! One of the documents even indicates Kavanaugh was the one who recommended Pryor's nomination to the post. That seems like ... involvement, just maybe!
We should also note that long-ago Wonkette editor/writer David Lat (who also, incidentally, was the founding editor of
Lawfare Above The Law) argues here that, nah, the Pryor question doesn't count as perjury. Lat makes the case that Kavanaugh was saying only that he hadn't been assigned to work in depth on the Pryor nomination, not that he'd been completely uninvolved. As lawblogger Popehat says, the question can't and shouldn't be settled on Twitter, thank Crom:
People are reading this to mean "Lat is obviously right and there was no perjury." Nope. More "to show perjury you're going to need a lot more than two pages of seemingly contradictory highlighted testimony," You need a contextual deep dive.
Gosh, if only there were some official body with the power to do such a contextual deep dive!
Correction (September 13): We incorrectly said David Lat was the founding editor of Lawfare; he was actually the founding editor of Above The Law. Wonkette regrets the error.
2. Stoled Emails! (No, Not Hillary's)
Wednesday, Patrick Leahy's questioning of Kavanaugh got at why Kavanaugh might have decided not to be straight with Kennedy 14 years ago: Turns out the Bush administration had a nice advantage going in to Pryor's hearings, because Kavanaugh and others prepping judge nominees had the benefit of files stolen from Leahy and other Judiciary Committee Democrats. The files, which detailed Dems' approach to Bush judicial nominees, had been stolen by a Republican ratfucker named Manny Miranda. Emails containing information from the purloined files were released for the first time Thursday, including one with the subject heading "Spying." No, we are not making that up -- the first line also says "I have a friend who is a mole for us on the left."
Lawfare neatly sums up the problems with Kavanaugh's answers to Leahy in Wednesday's hearing:
When pressed by Senator Leahy, Kavanaugh said that he didn't know he was working with stolen information (for hearings he lied about working on). Leahy said, "I was born at night, but not last night." Leahy said that he couldn't believe that Kavanaugh was in possession of stolen information, and used [it], and testified differently.
This. Is. Perjury.
You might think, just maybe. For a guy who never knew he'd worked with stolen documents, Kavanaugh sure had a whole bunch of 'em sent to him. Perjury? Mmmmmmaybe!
3. Wire Tapps? Never Heard of 'em! Oh, THOSE Wire Tapps!
In 2006, Patrick Leahy -- who has a knack for that sort of thing! -- asked Kavanaugh whether he had ever seen "documents relating to the President's NSA warrantless wiretapping program." Kavanaugh said he was just like any other American, and learned about it from the failing New York Times:
"I learned of that program when there was a New York Times story — reports of that program when there was a New York Times story that came over the wire, I think on a Thursday night in mid December of last year," the judge-to-be claimed.
When Leahy pressed Kavanuagh, asking if the nominee heard "anything about it prior to the New York Times article," Kavanaugh's response was even more definitive — "nothing at all."
Also unclear: Did the name of the whistleblower/leaker leave Kavanaugh, wondering, like other Americans, "Where are the Snowdens of yesteryear?"
Kavanaugh's denial doesn't at all seem to fit with this here email from Kavanaugh to John Yoo about -- let's see -- the Fourth Amendment implications of doing surveillance on foreigns inside the USA, which is supposed to require a warrant:
There are, as ThinkProgress's Ian Millhiser points out, a couple caveats: The email to Yoo was sent just a week after 9/11, at a point when
any discussions about this program would have been in their early stages — Bush signed an order authorizing the program in 2002. It is possible, in other words, that Kavanaugh did not know that this specific program had been authorized, even though he communicated with Yoo about the legal justification for such a program.
Kavanaugh also told Leahy on Wednesday that he couldn't rule out he may have discussed the constitutional implications of NSA surveillance right after 9/11 because "It was all hands on deck on all fronts" at that time. Again, the sort of thing that deserves a much more careful examination of the records. We sure bet that happens!
4. Torture? We Don't Torture! We Call It Something Else.
Also in 2006, in response to questioning from Leahy and Sen. Dick Durbin, Kavanaugh said he didn't know nothin' 'bout no tortures, because of course he did:
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.
Later media reports in WaPo and NPR revealed that Kavanaugh had been involved in Bush White House discussions of detentions and whether detainees should have access to counsel, and Durbin told NPR he felt "perilously close to being lied to." Durbin sent a letter to Kavanaugh asking for an explanation, and never got one. During this week's hearings, Durbin was plenty pissed about Kavanaugh's hair-splitting on the matter:
Judge Kavanaugh says he is a textualist. But he is twisting the plain meaning of the word “detention” to serve his… https://t.co/PXWImME0IQ— Senator Dick Durbin (@Senator Dick Durbin) 1536181810.0
This is just one of several points where documents from Kavanaugh's time in the Bush administration could shed much more light on what exactly Kavanaugh's involvement with the detention and torture programs really was, but Judiciary Committee chair Chuck Grassley has been clear: No need for anyone to go digging around in all that old stuff, because this nominee has to be confirmed in a hurry.
5. What About Kamala Harris?
Then there's that question Kamala Harris asked Kavanaugh Wednesday about whether he'd ever discussed the Mueller discussion with a lawyer from Kasowitz, Benson and Torres, and his weird dodgy non-answers -- gee, he's never heard of Marc Kasowitz, who represented Donald Trump? Harris returned to the question last night, and finally got a straight answer, after a full day of hedging and avoidance by Kavanaugh: "The answer is no," he finally said, and Harris seemed to drop the matter, saying "Thank you. And it would have been great if you could have said that last night."
But is there more to the story? Harris sure as hell acted like she knows something Kavanaugh doesn't want to talk about, and he took forever to get to "no," so we wouldn't be at all surprised if the subject comes up again -- and if it turns out there's more to it than "no," we could be looking at a little light perjury, maybe.
Now, Yr Wonkette can't say for sure Kavanaugh's half-answers to any of this stuff proves he lied in his earlier confirmation hearings, but there's a hell of a lot of hinky-looking stuff here -- there's at least enough to warrant a much closer look at all of it, because it sure would be nice not to have a perjurer get a lifetime appointment to the Supreme Court.
And no, Chuck Grassley waving his hands and insisting there's nothing more to see really is not an adequate replacement for a thorough investigation.
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Doktor Zoom's real name is Marty Kelley, and he lives in the wilds of Boise, Idaho. He is not a medical doctor, but does have a real PhD in Rhetoric. You should definitely donate some money to this little mommyblog where he has finally found acceptance and cat pictures. He is on maternity leave until 2033. Here is his Twitter, also. His quest to avoid prolixity is not going so great.