Benjamin Wittes writes:

The question before us … is not whether to punish Kavanaugh or whether to assign liability to him. It’s whether to bestow on him an immense honor that comes with great power. Kavanaugh is applying for a much-coveted job. And the burden of convincing in such situations always lies with the applicant. The standard for elevation to the nation’s highest court is not that the nominee established a “reasonable doubt” that the serious allegations against him were true.

A more interesting question than who bears the burden of proof is what that burden is. Lawyers like to think in terms of known standards of evidence: the reasonable doubt standard in criminal cases, clear and convincing evidence or the preponderance of the evidence in differing civil contexts. There is no known standard of evidence applicable here. Realistically, senators make up their own standard, and decide whether Kavanaugh has satisfied it. For most senators, in fact, there’s no standard of evidence at all, for their support for or opposition to him does not depend on the evidence. It is ideological in character.

But there’s another standard of evidence at work, the one inside Kavanaugh’s heart and head, the one which if he cannot meet, he acknowledges his own service to be less than viable. I can imagine two operative standards for a nominee in Kavanaugh’s shoes. One is what we might call the minimally convincing standard—which we can loosely define as a showing just powerful enough to align the few uncommitted Republicans with the already-declared Republicans and thus assure confirmation.

The other let’s call the no-asterisks standard—that is, a showing sufficiently powerful that a reasonable person will not spend the years of Kavanaugh’s service mentally doubting his integrity or fitness for the role he is playing. It is a showing sufficient for a reasonable pro-choice woman to believe it legitimate—if not desirable—for Kavanaugh to sit on a case reconsidering Roe v. Wade, or for a sexual-assault victim, whatever she may think of his views, to believe it legitimate for him to hear her appeal.

It is possible to imagine Kavanaugh’s confirmation taking place in the space between these two standards. It is possible to imagine his testimony shoring up support among those who want to support him but leaving everyone else with real doubt. This would be, in my view, a disaster for anyone who believes in apolitical courts. And it is not what Kavanaugh should want. Clearing one’s name sufficiently to convince only senators who are already ideologically aligned is not, in fact, clearing one’s name. It’s winning. And while winning may be the highest value for Trump, it isn’t actually the highest value—particularly for a justice. [Continue reading…]

The Washington Post reports:

Just as he did several weeks ago to prepare for his confirmation hearings for the Supreme Court, Brett M. Kavanaugh was back inside a room at the Eisenhower Executive Office Building — again facing questioners readying him for a high-stakes appearance in the Senate.

This time, the questions were much different. An array of White House aides, playing the role of various senators on the Judiciary Committee, quizzed Kavanaugh last week about his sex life and other personal matters in an attempt to prepare him for a hearing that would inevitably be uncomfortable.

In his answers during the practice runs, aides said, Kavanaugh condemned sexual assault and carefully avoided seeming to discredit Christine Blasey Ford, a psychology professor in Northern California who has accused the nominee of pinning her to a bed, groping her and putting his hand over her mouth to stifle her screams as he tried to take off her clothes at a drunken high school party in the early 1980s.

But Kavanaugh grew frustrated when it came to questions that dug into his private life, particularly his drinking habits and his sexual proclivities, according to three people familiar with the preparations, who requested anonymity to discuss internal deliberations. He declined to answer some questions altogether, saying they were too personal, these people said.

“I’m not going to answer that,” Kavanaugh said at one point according to a senior White House official, who said that the questions were designed to go over the line and that he struck the right tone. [Continue reading…]

Politico reports:

Fox News anchor Laura Ingraham, once a top recruit to serve as White House press secretary, was early out of the gate on Friday with urgent advice for the president.

“Rod Rosenstein must be fired today,” she tweeted, after the New York Times reported that the deputy attorney general had floated the idea of wearing a wire in the Oval Office and removing the president from office by invoking the 25th Amendment.

Ingraham, one of the 47 feeds that President Donald Trump follows on Twitter, tagged his handle in her tweet to make sure he didn’t miss her edict.

The “fire Rosenstein” sentiment — one she eventually deleted with no explanation — was publicly shared by Fox News colleagues and Trump pals like Judge Jeanine Pirro, as well as other close allies with the president’s ear, who did not walk back their comments.

But Trumpworld is no monolith — despite the perception that Fox News functions as an outside communications shop — and the divisions were on display Friday as differing opinions were blasted out in an effort to influence the president’s thinking after the bombshell story. [Continue reading…]

The Associated Press reports:

To the uninitiated, Georgetown Preparatory School feels less like a high school than a well-heeled liberal arts college. The 93-acre campus in a Maryland suburb of the nation’s capital boasts a state-of-the-art athletic center, a nine-hole golf course, and its own gift shop. Gardeners crisscross the grounds on carts.

This is where U.S. Supreme Court nominee Brett Kavanaugh spent most of his teen years. And exactly what happened one summer night during that time has become a question that threatens to unravel his chances of joining the nation’s highest court.

Multiple accounts from 1980s-era classmates depict an alcohol-soaked party culture among the close-knit network of single-sex, mostly Roman Catholic private schools in the country’s wealthiest state. At raucous house parties and drunken beach vacations, boys from Georgetown Prep and other all-male academies would meet up with students from nearby all-girl private schools like Stone Ridge, Holy Cross, Georgetown Visitation and the non-sectarian Holton-Arms School. Binge drinking was a routine part of the social scene, with minimal adult supervision. [Continue reading…]

Sen. Patrick Leahy writes:

Last week, I uncovered new evidence that Supreme Court nominee Brett M. Kavanaugh misled the Senate during his earlier hearings for the D.C. Circuit Court by minimizing and even denying his involvement in Bush-era controversies. I gave him the opportunity to correct his testimony at his hearing last week; he chose instead to double down.

I make no claim that Kavanaugh is a bad person. But when his prior confirmation to our nation’s “second highest court” was in jeopardy, he repeatedly misled the Senate when the truth might have placed that job out of reach.

Take his relationship with the ringleader of the “Memogate” scandal. Between 2001 and 2003, two Republican staffers regularly gained unauthorized access to the private computer files of six Democratic senators, including mine, taking 4,670 files on controversial judicial nominees.

Kavanaugh was asked more than 100 times about this scandal in 2004 and 2006. He testified repeatedly that he knew nothing about the source of the information; that he received nothing that even appeared to be prepared by Democratic staff; and that he never suspected anything unusual, or “untoward.”

But emails I released last week show that then-Republican Senate Judiciary Committee counsel Manuel Miranda regularly shared obviously ill-gotten, inside information with Kavanaugh, which Miranda often asked be kept secret. [Continue reading…]

Ronan Farrow and Jane Mayer report:

On Thursday, Senate Democrats disclosed that they had referred a complaint regarding President Trump’s Supreme Court nominee, Judge Brett Kavanaugh, to the F.B.I. for investigation. The complaint came from a woman who accused Kavanaugh of sexual misconduct when they were both in high school, more than thirty years ago.

The woman, who has asked not to be identified, first approached Democratic lawmakers in July, shortly after Trump nominated Kavanaugh. The allegation dates back to the early nineteen-eighties, when Kavanaugh was a high-school student at Georgetown Preparatory School, in Bethesda, Maryland, and the woman attended a nearby high school. In the letter, the woman alleged that, during an encounter at a party, Kavanaugh held her down, and that he attempted to force himself on her. She claimed in the letter that Kavanaugh and a classmate of his, both of whom had been drinking, turned up music that was playing in the room to conceal the sound of her protests, and that Kavanaugh covered her mouth with his hand. She was able to free herself. Although the alleged incident took place decades ago and the three individuals involved were minors, the woman said that the memory had been a source of ongoing distress for her, and that she had sought psychological treatment as a result.

In a statement, Kavanaugh said, “I categorically and unequivocally deny this allegation. I did not do this back in high school or at any time.”

Kavanaugh’s classmate said of the woman’s allegation, “I have no recollection of that.”

The woman declined a request for an interview.

In recent months, the woman had told friends that Kavanaugh’s nomination had revived the pain of the memory, and that she was grappling with whether to go public with her story. She contacted her congresswoman, Anna Eshoo, a Democrat, sending her a letter describing her allegation. [Continue reading…]

Michael Avenatti writes:

Sol Wachtler, a former chief judge of the New York State Court of Appeals, once famously remarked that grand juries were so easily swayed that they would “indict a ham sandwich” if a prosecutor requested it. Many times, there is truth to this. But an indictment does not end the process of determining guilt or innocence. It begins it.

Following indictment, criminal defendants can question the validity of the charges, the methods used to acquire the evidence and the evidence itself. They can seek to dismiss a criminal indictment and, if unsatisfied with the ruling, appeal it all the way to the Supreme Court.

The grand jury system has been employed in hundreds of thousands of cases involving all manner of crimes committed by all manner of people. All, that is, except one: the president.

No grand jury has ever indicted a president, and consequently no court, let alone the Supreme Court, has ruled on the critical question of whether the Constitution allows a president to be indicted while in office. Legal scholars have opined on both sides of the issue, and Department of Justice attorneys have drafted memorandums arguing against indicting a sitting president. But none of these analyses establish definitive rules of law. It is time to clarify the issue.

Provided there is sufficient evidence to support an indictment of President Trump — and there are many indications that there is — the special counsel, Robert Mueller, who is investigating possible Russian interference in the 2016 election, and prosecutors from the United States Attorney’s Office for the Southern District of New York, who are investigating payments to my client, Stormy Daniels, and Karen McDougal, should present their evidence to grand juries. Those jurors, citizens of our communities, should then determine whether the evidence supports an indictment of Mr. Trump.

The fact that Mr. Trump is a sitting president should not derail a process that applies to all Americans, regardless of stature or station. [Continue reading…]