The Senate Judiciary Committee and Judge Brett Kavanaugh’s accuser, Dr. Christine Blasey Ford, have reached an agreement to hold a hearing on Thursday. Although it has been said that Senate Judiciary Committee Chairman Chuck Grassley has laid out terms unfair to Ford and insensitive to the plight of women, in reality the truth of the matter cannot be sought without these conditions, and Ford should welcome Grassley’s conditions as it will help to ensure her credibility; provided of course, she is being honest.
If the committee is seeking the truth of what may or may not have happened, there are five imperatives that must take place.
First, it is imperative that Ford speak under oath. The charge against 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 Ford’s word against that of Kavanaugh’s, making it crucial that the veracity of Ford’s comments be established.
Placing Ford under oath is the only way society has to help guarantee the veracity of her testimony. Without the weight of an oath, 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 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 Ford must place herself under oath if she is to be believed.
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 have any hope of sticking. The protections for her lie in the limitations of the scope of the inquiry, the topics to be covered.
The second imperatives is that 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 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 Ford’s accusations are sincere, then Ford should welcome the opportunity to tell her story under oath rather than resist it.
For this reason, it would also be prudent for Ford’s attorney, Debra Katz, to be present at the hearing so she may object to inappropriate questions. Although Chairman Grassley would be the ultimate arbiter of whether the question stands or not, 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.
The third imperative is Grassley’s requirement that 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.
The fourth imperative is that 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.
The fifth and final imperative is the opportunity for questioning by the members of the committee. 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 Ford’s testimonies. It is impossible to tease out the facts without it.
Yes, it is important that 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 Grassley insists on the conduct of a hearing in a manner designed to elicit the truth. Grassley ought to stick to his guns on these provisions, and Ford ought to welcome them. Otherwise, better not to hold the hearing at all.
A sham is worth than nothing — if truth is the goal.