The unintended perils of investigating Kavanaugh

As the midterm elections approach, both parties are ramping up calls for perjury prosecutions and impeachment proceedings to reopen the Brett Kavanaugh controversy. Senator Dianne Feinstein (D-Calif.) has joined a growing chorus of Democrats calling for the reopening of the FBI investigation on the now sitting justice after the midterm elections. Senate Judiciary Committee Chairman Charles Grassley (R-Iowa) has referred allegations of false statements against Kavanaugh accuser Julie Swetnick and her attorney, Michael Avenatti — an act which Avenatti likens to “opening Pandora’s box.”

Of course, as with Pandora’s box, it is difficult to know what unintended perils might spill from the perjury box for both parties. We may be about to find out. The famous “box” actually was a jar, but the story is well known. Pandora was the creation of Zeus in retaliation for Prometheus stealing fire from heaven. Zeus gave the beauty to Epimetheus, brother of Prometheus, along with a jar containing all of man’s evils. Epimetheus could not resist Pandora, who promptly spilled out the jar’s contents, to humanity’s peril. The perjury box is proving equally difficult for both parties to resist, despite many warnings.

Julie Swetnick

Many Republicans are eager to see Swetnick and Avenatti forced to answer questions about her allegation that Kavanaugh effectively led a rape gang in high school – doping and attacking many girls at “multiple house parties” in high school. No witnesses have come forward to support this allegation; even some Democrats have criticized the allegation as undermining the accounts of Dr. Christine Blasey Ford and Deborah Ramirez.

{mosads}Absent a smoking-gun discovery of an effort by Swetnick to mislead, it is difficult to see how a false-statement case could be successfully mounted. The inclusion of Avenatti (who is one of my former students) is particularly concerning, since he represents a woman who wanted to come forward. Even if her account is found to be unsupported, it is a chilling move to seek the prosecution of both alleged victims and their counsel in coming forward to Congress.

Brett Kavanaugh

The referral by the Senate will, however, succeed in one critical respect: It gives Democrats full license to carry through on their own threat to investigate Supreme Court Justice Kavanaugh for his own testimony. He denied involvement in controversies tied to his service in the Bush administration as well as the meaning of references in his yearbook and his conduct in high school and college. Once Swetnick spills out, so will Kavanaugh.

There may be a hope that such a fight will not be truly mutual in its assured destruction. Kavanaugh did not deny drinking heavily but simply denied committing assaults or blacking out. That presents a more difficult challenge for investigators than an allegation of a specific act like drugging punch or leading a rape gang.

Christine Blasey Ford

Of course, if Democrats pursue Kavanaugh, Ford will not be far behind. Indeed, that process may have begun. Just as Swetnick’s counsel is facing a possible criminal investigation, Ford’s counsel are now facing their own ethics investigation in representing their client. In a letter to the Board’s Office of Disciplinary Counsel, Judicial Watch alleged that Ford implicated her counsel in ethical violations when she said she was never told of an offer for the judiciary committee to come to her in California due to her reported intense fear of flying. After establishing that Ford routinely flew around the world (and regularly flew to the East Coast), the committee asked why she did not accept the well-publicized offer for the committee to come to her. Ford said she was never told of the offer.

The statement was immediately flagged by some of us as raising a serious matter of legal ethics, given that the duty of counsel is to “keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.” In response to the complaint, attorneys Debra Katz, Lisa Banks and Michael Bromwich confirmed that Ford was informed of the offer, but introduced a curious distinction: “Dr. Ford was advised of all of her options and made her decisions based on the information we provided her. We were never told that Senator Grassley was willing personally to fly to California to meet with Dr. Ford, and that is how she understood his ambiguous question at the hearing.”

The problem is that the question was about “the committee” and not about Chairman Grassley. Prosecutor Rachel Mitchell asked whether “it was communicated to you by your counsel or someone else, that the committee had asked to interview you and that — that they offered to come out to California to do so?” Ford answered: “I just appreciate that you did offer that. I wasn’t clear on what the offer was. If you were going to come out to see me, I would have happily hosted you and had you — had been happy to speak with you out there. I just did not — it wasn’t clear to me that that was the case.”

Ford did not explain why, if she understood she could give a statement without flying, she did not accept the offer when the committee said time was of the essence. Moreover, her prior testimony belied the notion that she was strangely focused on whether Grassley himself was coming to California:

Prosecutor Mitchell: “OK. It’s — I ask that, because it’s been reported by the press that you would not submit to an interview with the committee because of your fear of flying. Is — is that true?”

Ford: “Well, I was willing — I was hoping that they would come to me, but then I realized that was an unrealistic request. … So that was certainly what I was hoping, was to avoid having to get on an airplane, but I eventually was able to get up the gumption with the help of some friends, and get on the plane.”

Ford clearly stated that she understood that “the committee” was not willing to fly to California and it was “an unrealistic request” that “they would come to me.” That is in direct contradiction of television and print stories saying the committee would go to her, due to her fear of flying.

Clearly, much will spill from the perjury jar if it is smashed after the midterm elections. Neither side will be able to object to the investigation of one but not the others. The parable is simple: Like lust, politics often is blind to looming dangers.

Notably, the only thing that did not fly from Pandora’s jar is often translated as “hope,” but a more accurate translation of the original Greek may be “deceptive expectation.” Hope can be both deceptive and destructive — something each side might consider in pledging to unleash the contents of the Kavanaugh debacle after November 6.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.