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Supreme Court nominee Brett Kavanaugh testifies during the second day of his confirmation hearing on Sept. 5, 2018. (Photo: Zach Gibson / Getty Images file)
Supreme Court nominee Brett Kavanaugh testifies during the second day of his confirmation hearing on Sept. 5, 2018. (Photo: Zach Gibson / Getty Images file)

The Allegations Against Brett Kavanaugh Are Not Simply a 'He Said, She Said' Situation

Prosecutors look for corroborating evidence — and there are strong indications already that Christine Blasey Ford is telling the truth about her attack

Allegations of sexual assault are deserving of a full and fair investigation, particularly when a lifetime appointment to the nation’s highest court is at stake.

We now have the specifics of an alleged attack Christine Blasey Ford, a California professor, says occurred in the 1980s when she and Judge Brett Kavanaugh were in high school in Maryland. Speaking to The Washington Post, Ford claims that Kavanaugh “physically and sexually assaulted” her and provided very specific details about how he allegedly pinned her to a bed, groped her and covered her mouth to prevent her from screaming — with such force that she was afraid he might suffocate her.

So now the question is: What’s next? The latest proposal is for Ford and Kavanaugh to testify under oath before the Senate Judiciary Committee on Monday. However, these allegations are extremely serious and we — five former federal prosecutors with a combined experience of many decades — believe that a Senate hearing, if it indeed occurs, is not enough. It will not adequately provide the American public with the full facts and truth about these allegations, nor, importantly, will it allow the Senate to fulfill its constitutional role of “advice and consent” in the context of potential Supreme Court justices. Rather, there must be a thorough, unrushed investigation by the FBI or by another independent investigator and a full and fair public hearing, including all relevant witnesses and not just Kavanaugh and his accuser.

There must be a thorough, unrushed investigation by the FBI or by another independent investigator and a full and fair public hearing, including all relevant witnesses, not just Kavanaugh and his accuser.

Because, if true, the allegation alone should disqualify Kavanaugh from serving on the Supreme Court.

While some argue that the truth about this incident will come down to a “he said, she said” situation, that’s not how it looks to us. Prosecutors and investigators are confronted with these scenarios frequently and don’t just throw up their hands and say, “We can’t decide.” Instead, prosecutors look for corroborating evidence — and there are strong indications already that Ford is telling the truth about her attack. Here are some of those indicators:

First, there is corroboration. Ford’s therapist’s notes in 2012, provided to The Washington Post, generally record her account of the attack. To believe that this is a made-up tale to prevent Kavanaugh’s confirmation, Ford would have had to plant the seeds of this story in 2012. That makes no sense.

Second, while not determinative, the fact that Ford passed a polygraph administered by a former FBI agent lends credence to her claims. Polygraph exams are inadmissible in court because they are not always reliable, but the FBI and other law enforcement agencies frequently use polygraph tests to assess the credibility of witnesses and defendants.

In addition, consider the motives of Ford, who by all accounts is not a particularly politically active person, to go public with allegations of sexual assault. It appears that she did not want to speak publicly at all, but that reporters discovered her identity and pursued her. Ford knew that she would be personally attacked in front of her children, colleagues, students and friends. There is no reasonable explanation for why she would subject herself to such humiliation other than the reason she has given: that she felt she had a duty as a citizen to speak up.

Many people have pointed to Ford’s delay in going public as evidence that she is lying. As prosecutors, we have learned that victims of sexual assault do not always come forward immediately — and often never do — because they are shamed by society, fear not being believed, worry that they will be blamed for the attack or just want to move on with their lives. Delay in reporting — particularly in the area of sexual assault — does not mean a report is false. And difficult as it is to come forward now, it would likely have been even more daunting for a 15-year-old girl in the 1980s, when Ford says she had this experience.

If you are still inclined to believe that Ford is lying, ask yourself: Why would she create a defense witness by identifying Mark Judge, who was and still is indisputably a friend of Kavanaugh’s, as being present and participating in this attack? Why would she place at the scene an individual who could, because of loyalties to his friend, contradict her account if she were making this up? She wouldn’t.

In our view, Ford is providing a credible account about a painful, horrible incident that occurred many years ago and which she hoped she would never have to talk about to anyone again, let alone the whole country. Now that she has courageously come forward publicly, everyone (including Kavanaugh, if the allegations are not true) deserve to have a full and fair investigation.

What should that investigation include? Witnesses, in addition to Ford and Kavanaugh, should be interviewed by nonpartisan investigators before they testify. These should include Mark Judge, other people who may have been present at the party that night (even if they did not actually witness the alleged attack) and Ford’s therapist from the 2012 session. One way to judge witnesses’ credibility is to look at how consistent their statements are over time and how witnesses’ statements line up with one another. This assessment cannot be done on the telephone and cannot be done in a vacuum by interviewing only two of the witnesses under oath.

Meanwhile, there is no legitimate reason to rush a confirmation vote. Confirming Kavanaugh under the current circumstances would undermine both his legitimacy and the integrity of the Supreme Court. Before a lifetime appointment, the FBI must have time to investigate this allegation and to determine if it is, for example, the only one.

Some have said that because these alleged acts occurred so long ago, when Kavanaugh was a teenager, they should not be disqualifying — even if true. We strongly disagree. In our criminal justice system, people 17 years old (and younger) are held accountable for acts they commit, sometimes in very harsh ways. It is simply not acceptable for one of the people tasked with overseeing that criminal justice system to not be held to the same standard.

Additionally, attempted rape is not simply an act of youthful recklessness, as some have cautioned. Few of us have such serious crimes in our pasts — and those who have committed them should not expect to easily be confirmed to posts like Supreme Court justice.

Finally, if these allegations are true, then that means that Kavanaugh has lied about them. That alone should disqualify someone from serving on the country’s highest court.

This is not about politics or investigating the ideological views of Brett Kavanaugh. Indeed, if his nomination does not succeed, President Donald Trump will almost certainly nominate someone with similar views and positions. This debate is instead about our country’s respect for women, for victims of crime and for our justice system.

Mimi Rocah, Barbara McQuade, Jill Wine-Banks, Joyce White Vance and Maya Wiley

Mimi Rocah is a criminal justice fellow at Pace Law School, a former federal prosecutor and an NBC News and MSNBC legal analyst.

Barbara McQuade is a professor at the University of Michigan Law School, a former U.S. Attorney for the Eastern District of Michigan and an NBC News and MSNBC legal analyst.

Jill Wine-Banks is a former Assistant Watergate special prosecutor, a former general counsel of the Army and an NBC News and MSNBC legal analyst.

Joyce White Vance is a law professor at the University of Alabama School of Law, a former U.S. Attorney in the Northern District of Alabama, and an NBC News and MSNBC legal analyst.

Maya Wiley is the senior vice president and professor at The New School, a former federal prosecutor and an NBC News and MSNBC legal analyst.

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