Power Grab

by Jason Chaffetz

  Even the White House, whose right to withhold documents under executive privilege was held sacrosanct by these same Democrats during the Obama administration, reported having turned over more documents on Kavanaugh than on the five previous nominees combined. The opposition had to know that executive privilege would apply to some of the documents that they were requesting. Nevertheless, the Democrats insisted that Kavanaugh was hiding something.

  Feinstein doubled down on the Schumer tweet, releasing a statement the same day with the same gaslighting technique Schumer had used to make the public question the facts:

  Scheduling a hearing in early September, while more than 99 percent of Kavanaugh’s records are still unavailable, is not only unprecedented but a new low in Republican efforts to stack the courts.

  Aside from the obvious hyperbole of suggesting that Republicans filling Supreme Court vacancies constitutes “stacking the courts,” Feinstein’s numbers are problematic. The Washington Post called out the obvious exaggeration in her messaging, noting that she had to massage the numbers by excluding large volumes of documents produced to the Senate, but not made public. The Post also noted her false assumption that the White House record being held back was millions of pages more than it actually was. Furthermore, the Post correctly pointed out that many of the records not produced were duplicates of emails sent and received among multiple people.

  Democrats would have you believe they were waiting to assiduously review every last page of every last document so they could be certain how they would vote. But if that were actually true, they probably would have shown up to see the documents that had already been produced. Especially the ones designated “committee confidential” that were considered too sensitive for public release. Did they? You won’t read about it in any mainstream source, but none other than Chairman Grassley himself provided the answer just before the hearings got under way:

  “The most sensitive presidential records remain committee confidential under federal law just as they were during the nominations of Kagan or Gorsuch,” he said. “But we have expanded access to these documents. Also, instead of just providing access to committee members, we’ve provided access to all 100 senators. Instead of just providing access to a very few committee aides, we’ve provided access to all committee aides. And instead of just providing access to physical binders of paper, we’ve provided 24/7 digital and searchable access. This is unprecedented access to committee confidential material. I would also like to add that my staff set up work stations and have been available 24/7 to help senators who are not on the committee access confidential materials . . . but not one senator showed up.”

  Any journalist with a laptop and a shred of integrity could have blown up the Senate Democrats’ false narrative with one story. (Of course, few did.) The document demands were nothing more than a ruse to delay the hearings and prop up the false narrative that Kavanaugh must be hiding something. But that would not stop Judiciary Committee Democrats and 2020 presidential hopefuls from doubling down on the overreach in the opening day of the Kavanaugh confirmation hearings.

  If this play sounds familiar, it’s because Schumer ran it again immediately after Attorney General William Barr released his summary of the Mueller report in late March 2019. Knowing that an investigation involving a foreign power would necessarily have to be redacted and that grand jury material is never made public, Democrats made a show of demanding the entire Mueller report with underlying documentation. They know it can’t all be produced. They don’t even necessarily disagree with the reasons. But if they want to run with a narrative that the Trump administration is “hiding something,” they have to create the appearance that they didn’t get everything they needed.

  To this point in the confirmation process, the behavior of Democrats trying to stop the Kavanaugh nomination was aggressive, opportunistic, and misleading. But not necessarily unprecedented. All of that would change once the hearings got under way. That’s when a new narrative would need to be built—a narrative powerful enough to take down a highly qualified Supreme Court nominee.

  The first day of the confirmation hearings was carefully scripted by Schumer, according to CNN. Citing an anonymous source, CNN reported that Schumer himself had worked through the preceding weekend with Judiciary Committee Democrats to lay out a plan. “Democrats agreed to protest the document issues at the beginning of the hearing with the goal of slowing down the process,” CNN reported.

  That’s when the real show began. Who can forget the drama of those hearings and their immediate aftermath, with all the suspense of carefully timed plot twists, last-minute bombshells, emotional outbursts, and Oscar-worthy performances by Democrats on the Senate Judiciary Committee? Perhaps the influence of the Democrats’ Hollywood acolytes had rubbed off on them.

  The drama was just getting started. Cue the choreography between Senate Democrats and nonprofit political groups. On the opening day of the hearing, Politico reported, “They created a spectacle by hijacking the hearing as soon as it started and calling for the committee to adjourn against a backdrop of liberal activists being arrested in protest.”

  The DNC’s surrogate Planned Parenthood was in the thick of the battle, announcing on the hearing’s opening day a six-figure ad buy against Kavanaugh in Washington, D.C., and Alaska, where moderate Republican Lisa Murkowski was expected to be a swing vote. In a tweet on the hearing’s opening day, the nonprofit posted:

  The disruptions we’re seeing during Brett Kavanaugh’s hearing pale in comparison to the disruptions and lengths women already take to access safe, legal abortion. This is what the resistance looks like, and we’re going to fight like hell to #StopKavanaugh.

  Yes, they would. At one point in the hearings, Republican senator Thom Tillis of North Carolina referenced a tweet from NBC suggesting that the protests, which were supposedly in response to a late document released the night before, had been coordinated by Leader Schumer in a conference call prior to that document’s release. He asked point-blank whether committee Democrats were involved in that call. Democratic senator Dick Durbin of Illinois admitted, “Mr. Chairman, there was a phone conference yesterday and I can tell you at the time of the phone conference many issues were raised.” The protests were just part of the script.

  Presidential hopefuls on the committee capitalized on progressive anger to jump-start fund-raising for their nascent presidential campaigns, with CNN reporting, “As the hearing was under way, both Booker and Senator Kamala Harris of California—often cited as potential 2020 presidential contenders—sent emails to supporters asking them to sign up with their names and contact information to stand against Kavanaugh, often seen as a way for senators to build contact lists.”

  Senator Booker had one of the most memorable moments of the hearing when he pointlessly broke committee rules to score political points. In promising to release a classified email he had inappropriately referenced publicly, Booker declared, “This is about the closest I’ll probably have in my life to an ‘I am Spartacus’ moment,” thus becoming a meme and a mockery. Later the public learned the disappointingly benign document had been cleared for release the previous night. But Booker’s intended unauthorized release of classified information was one more Senate norm sacrificed in the effort to score points against Donald Trump.

  Despite all the drama, the wall-to-wall news coverage, the screaming from activists, and the scheming from Senate leadership, the hearings weren’t going well. The radical extremist narrative predictably didn’t stick. The Russia collusion narrative was implausible given the paucity of evidence at the time. The #whataretheyhiding narrative didn’t stand up to the fact-checkers. But Senator Feinstein still had one card left to play.

  In a departure from long-standing Senate norms, Feinstein held that card back until the very last minute. She was sitting on a new allegation—a new plot twist—for which there had been no foreshadowing. Sensational allegations that Kavanaugh had sexually assaulted a woman in high school were being m
ade by an unknown source. Although Senator Feinstein had known of these allegations for weeks, she never so much as hinted at them until just prior to the confirmation vote.

  This craven attempt to amp up the drama and suspense was not the act of a person making a sincere attempt to get to the truth. It denied Kavanaugh that most fundamental right of due process. This was someone fearful the show would not go on if she took time to actually vet the allegations.

  Kavanaugh had come to the confirmation process with a long record of mentoring and empowering female law clerks, volunteering in the community, and coaching girls’ sports teams. The narrative Feinstein needed to build would have to turn him into a beer-guzzling college frat boy who forces himself on unsuspecting innocents.

  A letter to Chairman Grassley from Senate Democrats dated August 24, 2018, cited “unprecedented lack of transparency” as justification to delay the hearings slated for the following week. Yet even as Feinstein and colleagues were demanding transparency, they themselves were holding back information Feinstein would later describe as critical to the nomination. “From the outset,” she would later say, “I have believed these allegations were extremely serious and bear heavily on Judge Kavanaugh’s character.” If that is true, her failure to produce that evidence at the appropriate time was a significant departure from standard investigative procedure and an indication that fact-finding was not her priority.

  When news of the allegations finally dropped, it didn’t come from Feinstein, who had briefed committee Democrats days after the Kavanaugh hearings concluded but chose to keep Republicans in the dark. Once again, this was a departure from the way such investigations typically operate, particularly when a committee believes there is a sexual assault victim to protect.

  Details about the allegations leaked out slowly (some might say strategically) starting with a September 12 Intercept story the same day Feinstein briefed committee Democrats. The first story only described the existence of a document, but reported that the content was unclear. More details dribbled out in a New York Times story the next day suggesting the incident involved sexual misconduct and then a New Yorker article a day later that suggested an assault by Kavanaugh. Two days later, Chairman Grassley learned of the identity of Kavanaugh accuser Christine Blasey-Ford from the Washington Post. The coordinated rollout was now a full-scale public relations offensive.

  I have worked with investigations that involved victims of sexual assault. They require great sensitivity and discretion. Never have I seen a witness treated the way Ford was treated by committee Democrats and by her own lawyers. To them, she seemed to be more of a political commodity than a human being.

  The response from Blasey-Ford’s lawyers to Senate Judiciary Committee efforts to investigate seemed calculated to maximize the drama rather than to expose the truth or protect the witness.

  According to the Senate Judiciary Committee memo released after the whole process concluded, Dr. Ford’s attorneys refused all committee requests for an interview with their client, either in California or in Washington, missed deadlines to respond, and delayed the investigation. When they finally did respond, they insisted on controlling the “number of witnesses, the order of witnesses, the number of cameras, the specific reporters and media outlets granted access, Justice Kavanaugh’s location during Dr. Ford’s testimony, and the Committee’s manner of questioning Dr. Ford.” Breaking with another Senate norm, the committee accommodated many of those requests. Despite those great efforts, Ford’s attorneys refused to turn over evidence they claimed was in their possession—specifically polygraphs, videos of the polygraph examination, and therapy notes Dr. Ford claimed would substantiate her story.

  For a witness to make such an incredible claim and then refuse to produce evidence she uses to support that claim was unusual. In my experience, witnesses are anxious to document their claims. Not Dr. Ford—if you believe her lawyers.

  We later learned that Dr. Ford’s attorney was a Democrat activist and self-proclaimed member of the resistance movement who had been recommended by none other than Senator Feinstein. Was Senator Feinstein coordinating with the witness and her legal team prior to the testimony? If so, that behavior would be far outside the norm for congressional investigations.

  Rather than conduct an investigation using Democratic investigative staff, Senator Feinstein chose to believe Dr. Ford sans evidence proving her claims. She leaned on the earlier FBI investigation—perhaps because she could be critical of an FBI investigation rather than an investigation by her staff.

  Meanwhile, Feinstein criticized GOP senators in an October 5 statement, saying, “They refused to gather evidence or do an impartial investigation into [Dr. Ford’s] allegations.” In contrast to Feinstein’s complete failure to investigate, Senate Republicans included in their memorandum on the investigation an exhaustive list of the forty-five witnesses they spoke with and the twenty-five written statements they collected in their effort to validate the claims of Dr. Ford. They concluded, “Committee investigators found no verifiable evidence that supported Dr. Ford’s allegations against Justice Kavanaugh. The witnesses that Dr. Ford identified as individuals who could corroborate her allegations failed to do so, and in fact, contradicted her.”

  Feinstein instead tried to argue that the FBI, not the Republican committee staff, should investigate the allegations. But as news organizations widely reported, sexual assault allegations are the jurisdiction of local police, not federal law enforcement. The FBI had no jurisdiction beyond the six FBI background checks performed over a twenty-five-year period that included interviews with 150 individuals who knew Justice Kavanaugh personally. Feinstein was surely aware of this fact. It was all part of the #whataretheyhiding strategy. As with document requests, they intentionally ask for something they know they can’t get. Then, when they don’t get it, they use that fact to shore up the narrative that someone is afraid of the truth.

  Just ten days after the Ford allegations surfaced, a second allegation emerged, this one from Debra Ramirez, who claimed to remember an incident at Yale in which Kavanaugh supposedly exposed himself. The allegation was published uncritically by the New Yorker, after which the New York Times acknowledged passing up the story when witnesses would not corroborate it. Without vetting the allegations, Democratic senators responded by releasing statements demanding the White House rescind the Kavanaugh nomination. The committee would later reveal that Ramirez had contacted witnesses asking them to verify her story. None did.

  Three days later, with the Ramirez allegations not yet discredited, another accuser came forward, this one represented by attorney Michael Avenatti. The accuser, Julie Swetnick, had a wild story involving a gang rape in high school. Like Ford’s attorney, Swetnick’s attorney played cat and mouse with committee investigators, promising evidence, but never producing it. Avenatti refused to allow Swetnick to be interviewed by the committee but did allow her to be interviewed by the media, where she would ultimately discredit herself.

  The next morning, Ford testified for the first time—in public. While her story was heartbreaking, there was not one element of it that could be positively verified; this left the public and the committee to make their judgments based solely on emotions. Honestly, if I had such a witness testifying to something so personal and so painful, but who I knew could not corroborate her story, I would not put her in front of cameras for all to judge. If Democrats truly believed the allegations, why would they politicize, package, and market her pain for public consumption? Particularly given her inability to remember anything verifiable. They had to know her testimony would be deeply scrutinized. Why expose her in that way? It was a reprehensible and opportunistic display.

  She told the Senate Judiciary Committee she was “100 percent certain” Kavanaugh was the one to abuse her. Later that day, Kavanaugh appeared before the Senate Judiciary Committee to defend himself. In no uncertain terms, he denied the allegations. During the follow-up questioning, Senate Democrats sought to shore up their na
rrative of Kavanaugh as a hard-partying frat boy. He was asked about a fourth accuser, Judi Munro-Leighton, who had emailed the committee claiming Kavanaugh raped her.

  The media breathlessly reported, analyzed, and researched every word. For days the allegations against Kavanaugh filled every newsfeed, newscast, and newsmagazine. In the stampede to get the story first, news outlets relaxed their standards for vetting, airing allegations that would later prove demonstrably false. Kavanaugh would forever be associated with the narrative Democrats had created around him.

  Moving the Goalposts

  Now, of course, the speciousness of the Democrat narrative could no longer be hidden. With the realization that none of the accusers could produce verifiable evidence of their claims, the narratives Democrats had so carefully spun began to fall apart. Democrats have an answer for that, too. It’s called moving the goalposts.

  Changing the criteria by which one party can declare victory is a political norm, but disingenuous nonetheless. They were frustrated over how many documents they hadn’t received. Then it was frustration over the volume of documents they received the night before the hearing. Then it was frustration over the volume of documents marked as committee confidential, as explained by Senator Durbin during the hearing. They argued that the public needed to see these documents. Then, as every document that they requested be reviewed and made public was approved, they started releasing committee-confidential documents and claiming they were breaking the rules. They later demanded an FBI investigation. Then, when it was completed, it wasn’t good enough.

  A similar evolution would repeat the following year as the special counsel investigation similarly failed to produce evidence to confirm the narrative that the Trump campaign colluded with Russia to steal the presidential election. Once the results of Mueller’s investigation became public, the collusion narrative would be old and busted. An obstruction narrative would become the new hotness.