The Kavanaugh attempted rape story

The reported sexual assault accusation against far-right Judge Brett Kavanaugh, currently nominated by President Trump for a seat on the Supreme Court, was known publicly only as an anonymous allegation until this report yesterday from Emma Brown, California professor, writer of confidential Brett Kavanaugh letter, speaks out about her allegation of sexual assault Washington Post 09/16/2018.

The way the claim emerged raises some important questions about journalistic and political ethics. Both may sound like quaint considerations these days, and maybe in this case they are.

Irin Carmon

Much as I want to believe in the power of reporting, it was reporters theoretically doing their jobs who told her story without her consent or participation and came into her space. As a reporter, I'm ambivalent about that.

— Irin Carmon (@irin) September 16, 2018

Sam Seder has a helpful report on the state of play of the issue in the public sphere as of Sunday (yesterday), Breaking: Kavanaugh Accuser Goes Public- Nomination in Jeopardy? 09/16/2018:

For Republicans these days, it's easy to process accusations of sexual harassment or sexual assault. Deny the accusations against Republicans, try to discredit the accusers, and carry on as if it doesn't matter even if it's true. When the accusations are against Democrats, promote them all over the place, make up some more, call the Dems big ole hypocrites.

For Democrats, it's more complicated. The party is more committed to women's rights generally than the Republicans. They also have more concern for procedural and legal protections when it comes to allegations of misconduct. Which is not to say they are scrupulous about avoiding dubious or exaggerated accusations derived from "oppo" research. And in general, they are more committed to seeking evidence-based grounds for action.

I expressed my own concerns here last year about the haste with which Democratic Senators pushed Al Franken to resign from the Senate based on numerous but vague accusations which were far less serious than what the attempted rape Christine Blasey Ford is alleging against Kavanaugh. Franken had requested a review by the Senate ethics committee and was restrained in public about his pushback on the allegations, which is the kind of response I would hope the Democrats would encourage. I didn't find the Franken episode an encouraging example of how political parties should handle such accusations.

In the Ford case, here's how I'm understanding the accusation as of this point. These are some of the reasons that to me argue for Ford's credibility.

• Her account of the assault is detailed.
• She is telling her story publicly and in her own name, knowing that there are real, practical risks for her in doing so.
• Ford is an experienced therapist who presumably understands the various practical and ethical issues with going public with such accusations.
• She had discussed it with her husband and her own therapist in 2012, well before Kavanaugh had been nominated for the Supreme Court and long before most people would have imagined Donald Trump as a credibile Presidential candidate.
• She provided some of her therapist's notes from the 2012 session.

One thing about the therapist's notes is that they partially contradict Ford's own current account. "The notes say four boys were involved, a discrepancy Ford says was an error on the therapist’s part. Ford said there were four boys at the party but only two in the room," Brown reports.

This is a reason to question the credibility of the account. But it certainly isn't disqualifying. The fact that Ford agreed to the release of the notes with that discrepancy included could also be taken as a sign of Ford's credibility.

Two further elements of the story argue circumstantially to some extent for Ford's credibility.

• The autobiographical writing of the other man she says was involved is at least broadly consistent with the kind of incident she describes.
• The Republicans produced a statement virtually immediately after the story emerged signed by 65 women claiming they knew him in high school and attesting to his fine character. They wouldn't have had such a document ready to release if they weren't expecting that something scandalous about his high school years might come out.

Is it relevant that Kavanaugh in his later life embraced far-right, anti-women's-rights political positions? I'll admit that the fact that he did adds a bit more circumstantial credibility to Ford's accusation to me. But, as we've seen over the last year, Democrats and supporters Democratic candidates have also engaged in sexual harassment or assault. And Bob Packwood, Republican Senator from Oregon 1969-1995, was one of the last arguably moderate Republicans in Congress and a supporter of women's rights issue. He resigned from the Senate in 1995 facing likely expulsion because numerous credible reports came to light of sexual misconduct on his part. (See: Tomothy Egan, Packwood Is Leaving As a Pariah In His State New York Times 09/09/1995)

So it's anything but a strictly partisan problem.

The follwing are considerations that could argue against the credibility of Ford's story.

• There is so far no evidence of Ford having made a contemporary report or record of the attack. The Washington Post story quotes her as saying 2012 was the first time she had told anyone about it.
• The incident was decades ago. One reason that the law has statutes of limitation on criminal prosecutions is the fact that eyewitness and victim accounts become less reliable over time.
• Kavanaugh has "categorically and unequivocally" denied the charge.

Even before this attempted rape charge emerged, Kavanaugh had shown himself in various ways seriously disqualified to be a Supreme Court Justice.

And Congress can and should look seriously at Ford's accusations and of Kavanaugh's handling of it in the present. If, for incident, he can be shown to have lied under oath or lied to Congress or the FBI about Ford or this incident in some way, that could be an actual crime in itself.

Two weeks too late

Democratic Senators Urge Al Franken To Reconsider Resignation Morning Joe/MSNBC 12/19/2017:

A Second Take On Due Process Morning Joe/MSNBC 12/19/2017:

I don't feel entirely comfortable siding with notorious corporate Dem John Manchin on this. (See: Edward-Isaac Dovere, ‘I Was An Easy Pickup’: How Trump Lost Manchin on Taxes) But when he's right, he's right. Politico 12/19/2017)

But Kirsten Gillibrand isn't claiming second thoughts: Edward-Isaac Dovere, Franken urged to reverse his resignation Politico 12/18/2017:

The feeling is not pervasive throughout the conference. Aides to several Democratic senators who called for Franken to step down, despite their conflicted feelings about doing so, said they remain comfortable with the move.

That includes Sen. Kirsten Gillibrand. The New York Democrat helped lead the charge against Franken the day that POLITICO published the account of a former Democratic congressional aide who said the former comedian tried to forcibly kiss her after the taping of a radio show in 2006.

Gillibrand has said that sending a clear message of zero tolerance is important, and that she was worried that the Ethics Committee process was being used as a shield.

“She has said, ‘He was entitled to a process, but he was not entitled to my silence,’” said one person who has spoken to Gillibrand about the decision.

And why should she? Pushing Al Franken into announcing his resignation removed one of the more prominent male politicians who might be a competitor to her in the Presidential primaries of 2020. She has other potential male opponents to knock off before she can get the nomination, notably Joe Biden. So why give up a political tactic that has been quite effective for her in the Franken case? Andrea Ramsey has some thoughts on the matter.

So does Elizabeth Drew:

Sen. Gillibrand, ringleader in showing Al Franken the door, now says he could have his process but not deny her her voice. No one was doing that but her voice denied him any process.

— Elizabeth Drew (@ElizabethDrewOH) December 19, 2017

The Gillibrand Standard Takes Out a Female Candidate?

"We should not have to be explaining the gradations between sexual assault, harassment and unwelcome groping." - Sen. Kirsten Gillibrand, 12/06/2017 Facebook post calling for Sen. Al Franken's resignation

The Gillibrand Standard according to which any allegation of sexual misconduct against a Democratic candidate becomes a reason for the Democratic Party to cut them loose seems to have claimed its first female candidate.

The candidate in question is Andrea Ramsey, a Democratic candidate for Congress in Kansas' 3rd Congressional District. Here is her description of why she decided to go the Al Franken route (Andrea Ramsey letter: ‘I never engaged in any of the alleged behavior’ Kansas City Star 12/15/2017):

When I was the head of human resources at a local company, I had to make difficult business decisions on a daily basis concerning budgets, training initiatives, compensation and benefits, workforce hiring and workforce terminations. A termination decision is always the most wrenching, because it affects not only a person’s livelihood, but also an individual’s dignity and sense of self. Sometimes employees don’t take the decision well, and do things they wouldn’t otherwise do because they are angry in that moment, seeking to retaliate.

Anyone who has seen personnel departments in large organizations in action is likely to have a twinge of skepticism at reading that. Because HR staff are advocates for the company, not for the employees. But that's beside the point for the facts of her case.

Twelve years ago, I eliminated an employee’s position. That man decided to bring a lawsuit against the company (not against me). He named me in the allegations, claiming I fired him because he refused to have sex with me. That is a lie. The Equal Employment Opportunity Commission investigated the allegations and decided not to pursue the complaint; the man later decided to voluntarily dismiss the lawsuit. Because I wasn’t a named party, I didn’t have any opportunity to participate in its resolution.

Since I was in sixth grade, I wanted to be a lawyer. What drew me to the field of law was the idea of due process, that both sides presented their case and an objective judge or jury weighed the evidence. I have been swept up in decisions without due process. A man sued my company twelve years ago and made false accusations against me. Had the false allegations been brought against me directly, I would have fought to exonerate my name and my reputation. I would have sued the disgruntled, vindictive employee for defamation. Now, twelve years later this suit is being used to force me out of my race for Congress. Let me be clear: I never engaged in any of the alleged behavior. And the due process that I love, that drew me to the field of law, is totally denied. [my emphasis]

Ramsey specifically refers to the problem created by the Gillibrand Standard, though she doesn't call it by that name:

My opponents have chosen to use these false allegations against me for political purposes, not only engaging in a whisper campaign, but also contacting political and news organizations. These false allegations are disgraceful and demean the moment this country is in. For far too long, complaints of sexual harassment have been completely ignored. The timely and thorough investigation of complaints is a very good thing. We are seeing real change in how harassment is being handled from Topeka to Washington. We should always make it as safe as possible for people who have been wronged to come forward, and I have based my professional career as an employment lawyer and human resources executive on that principle.

In its rush to claim the high ground in our roiling national conversation about harassment, the Democratic Party has implemented a zero tolerance standard. For me, that means a vindictive, terminated employee’s false allegations are enough for the Democratic Congressional Campaign Committee (DCCC) to decide not to support our promising campaign. We are in a national moment where rough justice stands in place of careful analysis, nuance and due process. [my emphasis]

McClatchey's Lindsay Wise and Bryan Lowry report (Democrat Andrea Ramsey, accused of sexual harassment, drops out of U.S. House race McClatchy/Kansas City Star 12/15/2017):

She was running with the endorsement of Emily’s List, a liberal women’s group that has raised more than a half-million dollars to help female candidates who support abortion rights. ...

The Democratic campaign committee, which has not endorsed anyone in the race, said in a statement that members and candidates must be held to the highest standard.

“If anyone is guilty of sexual harassment or sexual assault, that person should not hold public office,” said committee spokeswoman Meredith Kelly.

Emily’s List said in a statement on Friday that the group supported Ramsey’s decision to drop out of the race and wished her well. The organization removed Ramsey’s photo and endorsement from its website shortly after The Star’s report was published online.

Note that the Democratic committee in that quote appears to be saying they think Ramsey was guilty of the alleged conduct.

From their report, it appears that Ramsey could have been a strong Democratic candidate. Scott Bland and Maggie Severns write (Female House candidate withdraws over sexual harassment claim Politico 12/15/2017), "Ramsey is the first congressional candidate to resign amid a wave of other resignations in Washington revolving around sexual harassment. Ramsey was a top recruit for the women-in-politics group EMILY's List this year and Yoder’s district, which includes parts of Kansas City, is considered a promising potential pickup seat for Democrats."

This story presents the same dilemma that the Al Franken case did, in that the politician accused did not accept the accusations as accurate, the claims that were in the public record were vague, and there was no formal process that had validated the claims. In both cases, the Democratic Party quickly turned on the candidate, or Senator in Franken's case. And the accused person bowed out of their political position, which for a lot of people will be taken as an admission of guilt. And the charges are "out there," and lot of people will believe them because they find them titillating.

The Republican Party does not apply the same standard to their candidates. See: Moore, Roy; and, Trump, Donald.

The case of John Conyers is obviously different. Except by the Gillibrand Standard, in which Democrats should not differentiate among vaguely alleged rude behavior, indecent exposure, and actual assault. But, as I understand it, Conyers had agreed to specific settlements on very specific allegations. There were also accusers speaking on the record and telling credible and generally consistent stories.

One of the things I've wondered about in the current discussion of sexual harassment is how it may affect the practice of companies and other organizations agreeing to cash settlements over such allegations. The nondisclosure agreements strike me as a real problem. But the settlements themselves can be based on a pragmatic financial calculation, in which the company attorneys are confident they would win the case but it would cost the company significantly more money to litigate the case than the settlement would cost.

Bill Clinton famously made a legal settlement with Paula Jones. But, as Joe Conason describes (When reckoning with Bill Clinton, use facts, not myths PressConnects 11/24/2017), "various contradictions marred her testimony, notably the mythical 'distinguishing characteristic' of Clinton's male equipment, which she evidently invented. Still, he agreed to pay her a settlement of $850,000, without any admission, to end the litigation." And he explains, "That payment was the least of the indignities and injuries that befell Clinton. The investigations cost him tens of millions of dollars, a five-year suspension of his license to practice law, a searing scar upon his family, and a future obituary that will feature his status as the only president ever impeached over a sex lie."

So a legal settlement over sexual harassment charges in itself does not mean an admission of guilt unless such an admission is specific. In Ramsey's case, she is explicitly denying the charge. And she is claiming, so far apparently without argument from anyone, that the settlement the company made over the fired employee's complaint did not include the company admitting any kind of validity to the sexual harassment claim.

The Democrats are going to have to find a better way to handle these cases like Franken's and Ramsey's, unless they don't care that the Republicans can use this to easily knock out Democratic candidates from contention.

Kirsten Gillibrand as Presidential candidate

Kirsten Gillibrand's national political visibility got an obvious boost from her taking the initiative to pressure Al Franken to resign over vague allegations of sexual misconduct on the level of rudeness, most of them from anonymous sources, as of this writing and at the time of Franken's resignation speech in the Senate.

In announcing her demand that Franken resign in a Facebook post of 12/06/2017, she included this remarkable statement:

While it’s true that his behavior is not the same as the criminal conduct alleged against Roy Moore, or Harvey Weinstein, or President Trump, it is still unquestionably wrong, and should not be tolerated by those of us who are privileged to work in public service.

As the mother of two young boys, we owe it to our sons and daughters to not equivocate, but to offer clarity. We should not have to be explaining the gradations between sexual assault, harassment and unwelcome groping. And what message do we send to our sons and daughters when we accept gradations of crossing the line? None of it is ok and none of it should be tolerated. [my emphasis]

It's quite a double message to acknowledge that the vague and publicly unproven claims against Franken are not "criminal conduct" but then immediately after to insist that in public life and in private standards ("our sons and daughters") we should not "accept gradations of crossing the line" among "sexual assault, harassment and unwelcome groping."

That a reckless and foolish standard. For law, for private life, for business, for public life. Telling a dirty joke in the office may deserve a reminder from the boss not to be vulgar. But to be a good reason to fire someone, much less imprison them, it would need to be an exceptionally dirty joke.

And, yes, to be clear, I'm being sarcastic on the last point, although there might be circumstances - doing so in front of a customer, or a junior executive inserting one into a presentation to the company board of directors, in which a single instance might be justifiable. But by the Gillibrand Standard, we should accept no "gradations" of seriousness of an offence among "sexual assault, harassment and unwelcome groping." We should assume that an attempted kiss, one of the sins of which Franken is accused, also fits in that category of the Gillibrand standard, since it was the Franken case that was the occasion of her statement.

As a practical matter, the Republicans will look at the Democratic Senate revolt against Franken as a sign of weakness, including Franken's decision to resign while denying the accuracy of the charges. Republicans are very adapt at using these kinds of claims against Democratic opponents, or "weaponizing" them as the pundits now say.

Also as a practical matter, Gillibrand's initiative removes Franken as a potential competitor for the Presidential nomination in 2020. Other potential/likely Democratic Presidential candidates that joined in the call for Franken's resignation before he publicly declared his intention to do so were Kamala Harris, Cory Booker, Bernie Sanders and Elizabeth Warren.

But Gillibrand was the one whose leadership on the matter earned her a couple of valuable puff pieces in the days since. The New York Times reported the same day as her Facebook post: Shane Goldmacher, On Sexual Misconduct, Gillibrand Keeps Herself at the Fore New York Times 12/06/2017. The flattering graphic below accompanied Politico's story on her:

Her earlier use of the Roy Moore scandal to score points with Democrats suspicious of Clinton paved the way for her Franken publicity bonanza: Jennifer Steinhauer, Bill Clinton Should Have Resigned Over Lewinsky Affair, Kirsten Gillibrand Says New York Times 11/16/2017. Politics is politics, and her positions on that issue and Franken have been politically beneficial to her in the short term. When even a Gillibrand Presidential candidacy can survive the incredibly low barrier set by the Gillibrand Standard remains to be seen. If there's a photo of her from some time in her life playfully pinching somebody on the butt, that could be embarrassing.

Now Trump has decided to make her the same kind of target he made Hillary Clinton:

Gillibrand responded:

You cannot silence me or the millions of women who have gotten off the sidelines to speak out about the unfitness and shame you have brought to the Oval Office. https://t.co/UbQZqubXZv

— Kirsten Gillibrand (@SenGillibrand) December 12, 2017

Now she is getting even more attention as a defender of women, with headlines like this from Yahoo News today:

The Morning Zoo crowd came down hard on Trump, Mika On President Donald Trump: That Tweet Said So Much About His Character Morning Joe/MSNBC 12/12/2017:

This MSNBC segment also gives some possible other angles on this and the kind of comma-dancing that may go on around it, Senator Kirsten Gillibrand: President Donald Trump's Attack A 'Sexist Smear' 12/12/2017:

I won't try to predict how this will play out. I will say that Trump's base doesn't care about sexual harassment and assault charges against him. And the Franken case gives good reason to worry that Democrats will not be able to outplay the Republicans on the politics of this. To the extent that Democratic responses to this and future Trump outbursts on the subject comes off to Democratic and Democratic-leaning voters as, "You can't criticize me because I'm a girl," that will not be good for the Democrats.

Trump operates as a professional wrestler. He portrays a theatrical image of toughness with blowhard nonsense like this. But it has so far worked remarkably well for him politically. And Trump's professional wrestling instinct may be telling him Kirsten Gillibrand would be a useful foil for him.

The Democrats need to use their advantage on the sexual harassment issue without forgetting that Republicans can do the same. And the radical difference between how the parties' respective voting bases regarding the issue. And that makes it more complicated for the Democrats. Because the Democratic base has a lot of people, male and female, who are more inclined toward "believe the evidence" than simply "believe women." Especially ones who remember the Clinton pseudoscandals of the 1990s. And a lot of the Democratic base will not feel the least bit comfortable with the Gillibrand Standard of treating "sexual assault, harassment and unwelcome groping" as a set of equivalent sins.

And even in the midst of justifiable outrage about Trump's obviously sexist and sleazy tweet above, it can also be read and understood by the Republican base as a swipe at political corruption. It's a joke to think of Trump as an opponent of corruption. But the effect of political symbolism is not purely a matter of logical reflection. John Marshall has an insightful take on the corruption angle of the tweet and how Trump more generally works the issue, The Only Honor Is Corruption TPM 12/12/2017.

And that was the approach that White House publicity hack Sarah Huckabee Sanders took in her daily briefing today, beginning just after 21:30 (PBS Newshour 12/12/2017). She returns to it later in the press conference and works it hard:

Also, am I the only one to think that Trump's reference to Sen. Schumer in that tweet was a bit of anti-Semitism? Sarah Huckabee Sanders referred to Gillibrand as a "puppet" of Schumers, "puppet-master" being a long-time feature of anti-Semitic propaganda.

Democrats and sexual harassment scandals

How Republicans react to credible reports of serious sexual assault on the part of their candidates:

How Democrats react to vague claims about their candidates having committed inappropriate and obnoxious acts that qualify as sexual harassment but on the level of offensive and annoying rather than violent or criminal:

That's a screen capture from "Duck And Cover" - original TV advert 10/27/2010.

I don't know what the details of the Al Franken sexual harassment controversy will turn out to be. And we probably won't know, now that he's already announced he's resigning from the Senate.

But I do know that on Wednesday, a majority of the Democrats in the Senate called on Al Franken to resign his Senate seat. Next Tuesday is the Alabama Senate election in which the hard-right Republican candidate and troglodyte Roy Moore has been credibly accused of sexual assault on a 14-year-old and a 16-year-old when he was in his 30s. President Trump has been clearly supporting him. So is the Republican national Committee. Republicans in Congress are dutifully reciting the talking point that the people of Alabama have to make the decision.

Allan Smith (The polling trends for Trump and Roy Moore are starting to look remarkably similar Business Insider 12/04/2017) reports:

Republican Senate candidate Roy Moore's polling rebound has begun to follow a similar pattern to then-Republican presidential candidate Donald Trump in the month that followed bombshell sexual misconduct-related revelations against them.

Moore, the Alabama candidate who last month was hit with allegations that he preyed on teenagers when he was in his 30s, saw his RealClearPolitics polling average dip immediately. His his substantial lead over Democratic opponent Doug Jones evaporated in the week that followed the initial revelations.

But now, less than a month after the first allegations were made public, Moore has regained a lead over Jones and has watched his polling average return to a familiar level.

The trend mirrors one that Trump experienced following the release of the "Access Hollywood" tape last fall.

But the Democratic Senators couldn't wait until Wednesday of next week to call on Franken to resign. And this just after John Conyers announced he's stepping down from his Congressional seat after much more serious allegations than those against Franken.

Regardless of the merits of the charges against Franken or the appropriateness of wanting him to steop down, these last few weeks have show Republicans, including the James O'Keefes of the world now see that the Democrats are still inclined to their long-standing approach we've seen with ACORN, Shirley Sherrod, "General Betray-us" and other instances: "Surrender first. Then fret later about whether we should have fought or not."

I'm optimistic about the Democrats' chances in 2018 because the Trump Administration is so bad and because there is a continuing surge of real grassroots activism. After Wednesday, I'm emotionally deflated about it, though. Because the Democrats are clearly very sorely tempted to try to coast. And the Republicans are going to be able to maintain effective control if the Democrats' instinct remains to respond to any kind salacious accusations against Democrats by:

The only message that Republican partisans will take from this is that "Duck and Cover" remains the Democrats' unofficial theme song.

60-vote Democratic majority in the Senate

This is great news! State Supreme Court rules for Franken, 5-0 by Pat Doyle Minneapolis Star-Tribune 06/30/09.

The question remains: why didn't "Give 'Em Whine Harry" Reid and the Senate Democrats raise enough hell over this to make it a constant political issue in the stenographic reporting of our national press corps? Because in the same position, the Republicans certainly would have. It would have been okay if Reid had whined about that issue. But he only seems to whine about why he can't get things passed that the Democratic base want to see passed.

Now he has his "veto-proof" 60-vote majority. The filibuster threat was already a paper-thin excuse. Now Dems should just laugh and hoot if he uses that one. And Obama's White House has shown on the war supplemental and the climate bill that it's willing to muscle legislation through the Congress if it's something they are serious about getting passed.

And this means the Dems have no valid excuses at all not to pass a decent national health care plan. None. Though some of them are trying hard to find them.

Tags: al franken, democrats, democratic party, harry reid

One of the great mysteries of present-day American politics

The mystery is why "Give-'Em-Whine-Harry" Reid and the rest of the Senate Democrats aren't screaming daily about the Republicans' blatantly partisan, outrageous blocking of the elected Senator from Minnesota, Al Franken, from taking his seat. (See Josh Marshall, Bad News for Franken? 06/02/09)It's now seven months since the election. After Florida in 2000, every sentient Democrat, especially the elected Members of Congress, whould have been on hair-trigger alert for these kinds of shenanigans.

It's a sign of how lazy and listless the Democratic leadership has become in so many ways. No surprise there. But getting Franken seated would also be a benefit for the lazy and the listless. So why can't they rouse themselves to fight over this one? I don't understand it. I really don't understand it.

Tags: al franken, democratic party