On Thursday, as Democratic hopes of stopping Judge Brett Kavanaugh from ascending to the Supreme Court faded, new and outsized importance has been placed on Kavanaugh’s supposed “perjury” in his testimony before the Senate Judiciary Committee. Kavanaugh, the logic goes, lied; no matter that the allegations against him remain uncorroborated on every level, no matter that he was personally attacked by senator after senator, he fibbed about his high school yearbook, and thus he should be toast.
This is absurd for a few reasons.
First, there is only one plausible allegation that Kavanaugh lied – and that supposed lie took place on an ancillary matter unrelated to the allegations at issue. All the other allegations of lies are merely conjecture or deliberate misreading. Let’s go through the supposed lies, as listed by far-Left Media Matters:
1. Kavanaugh Said Ford’s Accusation Had Been ‘Refuted’ By Others. Well, that’s not perjury. If you claim that a party happened and someone was there, and they say they don’t remember the party, that is indeed a version of refutation. That’s particularly true when one of your supposed witnesses is your best friend, as is the case with Christine Blasey Ford and Leland Keyser.
2. Kavanaugh Said He Didn’t Travel In Ford’s Social Circles. According to Media Matters, Kavanaugh lied when he said he didn’t travel in Ford’s social circles. Why? Because according to Kavanaugh’s calendar, he had mutual friends with Ford. But that’s silly. I’m friends with lots of people who have friends I don’t know. Six degrees of Kevin Bacon isn’t perjury.
3. Kavanaugh Tried To Say He Didn’t Drink on Weekdays. Actually, he said that he rarely drank on weekdays, and then referenced an exception on his calendar. So no lie.
4. Kavanaugh Said He Had No Connection To Yale Prior To Attending Undergrad. Supposedly, Kavanaugh was a legacy admit. But the only connection Kavanaugh had was that his grandfather attended Yale. That doesn’t make you an automatic legacy admittee – as even Slate noted, “The legacy status does not necessarily mean that Kavanaugh would not have been accepted otherwise or that he was allowed in unfairly.” And there’s no evidence that Kavanaugh used his grandfather’s attendance in his application.
5. Kavanaugh Denied Blacking Out While Drinking. There’s no evidence otherwise. Third party accounts of him getting seriously drunk do not overcome the subjective question as to whether he remembers events while drinking.
6. Kavanaugh Said He Didn’t Live Close To Columbia Country Club. He lived 3.5 miles from Columbia Country Club. That’s not particularly close.
7. Kavanaugh Said “Devil’s Triangle” Wasn’t Sexual. Some people say that the term refers to a two-male threesome; others say it was indeed a drinking game. That’s not a provable lie. Also, it’s weird to think he lied about the nature of the term “Devil’s Triangle” while simultaneously suggesting he was downplaying his drinking.
8. Kavanaugh Said Boofing Was Farting. Some say boofing refers to anal sex. Others say it refers to farting. That’s not a lie.
9. Kavanaugh Says He Had a Weak Stomach. He can both have thrown up from alcohol and spicy food. Having a weak stomach is apparently a true story, according to Ross Douthat.
10. Kavanaugh Lied About Mark Judge’s Book. Nope. Kavanaugh stated that Mark Judge’s book was a fictionalized account, which it was; Kavanaugh added that Mark Judge could be asked what was fact and what was fiction. Again, no lie.
11. Kavanaugh Denied Watching Ford’s Testimony. The Wall Street Journal said Kavanaugh was in a room with a “monitor” showing Ford’s testimony. That doesn’t mean he watched her entire testimony. He did in fact have to prep his own.
12. Kavanaugh Lied About When He Became Aware of Deborah Ramirez’s Allegations. He testified he found out about them in The New Yorker, according to Media Matters. But in actuality, Kavanaugh told the Judiciary Committee on September 25 that he had heard that Ramirez was calling around looking for verification of her story.
13. Kavanaugh Either Lied About Being A Virgin Or About Not Being A Virgin. Well, actually, telling your friends in college that you’re not a virgin even when you’re a virgin doesn’t amount to a lie of any consequence. Have these people ever met a high school or college boy?
14. Kavanaugh Acted Like He Didn’t Know The Kasowitz Law Firm. Actually, no, he didn’t. He testified that he’d never talked to anyone at Kasowitz about President Trump’s Mueller case. And he said he didn’t know every lawyer at Kasowitz.
15. Kavanaugh Said Documents Stolen From Democrats Didn’t Raise Red Flags. There’s no way this is falsifiable. There are no emails or documents showing he received stolen material, let alone that he did so knowingly.
16. Kavanaugh Said He Didn’t Work On The Confirmation For William Pryor. Actually, he said he wasn’t involved with Pryor’s nomination in a primary way – because he wasn’t. As National Review explained, “He clearly said that he was not assigned the Pryor nomination, but he also said that he may have helped the nomination in other ways, including by attending a moot-court session. In other words, he never testified that he was not involved at all in the Pryor nomination, just that it was not his to handle.”
17. Kavanaugh Said He Grew Up In A City Plagued By Gun Violence. He grew up in Bethesda. Bethesda is next door to Washington D.C. He was clearly referring to D.C.
18. Kavanaugh Denied Knowing About Judge Alex Kozinski’s Hostile Work Environment. There is no evidence that Kavanaugh knew about Kozinski’s hostile work environment. This is conjecture.
All of which leaves one credible allegation that Kavanaugh lied: when asked about the phrase “Renate Alumnius” in his yearbook, he said:
One thing in particular we’re sad about: one of our good — one of our good female friends who we would admire and went to dances with had her names used on the yearbook page with the term “alumnus.” That yearbook reference was clumsily intended to show affection, and that she was one of us. But in this circus, the media’s interpreted the term is related to sex. It was not related to sex. As the woman herself noted to the media on the record, she and I never had any six — sexual interaction of — at all. I’m so sorry to her for that yearbook reference. This may sound a bit trivial, given all that we are here for, but one thing I want to try to make sure — sure of in the future is my friendship with her. She was and is a great person….
I explained that in my opening statement. We — she was a great friend of ours. We — a bunch of us went to dances with her. She hung out with us as a group. The media circus that has been generated by this, thought (ph) and reported that it referred to sex. It did not. Never had any — as she herself said on the record, any kind of sexual interaction with her. And I’m sorry, how that’s been misinterpreted and sorry about that, as I explained in my opening statement. Because she’s a good person. And to have her named dragged through this hearing is a joke. And, really, an embarrassment.”
Is it plausible that this comment was meant as a tribute to her? Unlikely. Is there any allegation that aside from being a crude teenager, Kavanaugh mistreated Renate Dolphin? Not in the slightest. In fact, before she found out about the yearbook entry, Dolphin signed a letter in support of Kavanaugh.
So, hours of testimony – one plausible lie.
Is that enough to finish Kavanaugh’s nomination? That he characterized a probable crude teenage sexual reference as a term “clumsily” intended to show affection, presumably in order to shield her feelings – or even in order to avoid the suggestion Democrats would undoubtedly make that Kavanaugh’s crude terminology made his sexual abuse allegations more plausible?
Second, not all fibs amount to perjury. The DOJ standards require “materiality” of a lie for it to be perjury. That makes sense, since nearly all nominees fib in self-flattering fashion. For example, nearly every judge says he or she has no opinion on pending cases or historic precedent. That’s obviously untrue. It’s not perjurious. Furthermore, there’s no way to prove perjury in this case, since the interpretation of a phrase like “Renate Alumnius” is subjective. Why haven’t any of the other members of Kavanaugh’s yearbook who used the phrase been asked it?
Third, if our new standard is that we get to ask judiciary nominees to read out loud the most embarrassing portions of their high school yearbooks while accusing them of gang rape, and that we will then hold them to perjurious standards when they read those yearbook entries in the most self-flattering way, we’re going to be short a few judges.
Frankly, it’s hard not to read the new standard as a perjury trap. Accuse a man of raping young women, then ask him about the yearbook entry from junior high in which he says “Rachel sure is hot!,” then suggest he’s committed perjury when he says that the reference is not sexual – since he understands that a contrary response will result in a new spate of headlines about his youthful perversity – and then call him a perjurer, throwing out thirty years of federal service in the process. This isn’t exactly Bill Clinton saying he didn’t have sexual relations with that woman, Monica Lewinsky.
Finally, this is just another attempt to move the goalposts on Kavanaugh. This all started over sexual abuse allegations against Kavanaugh. When that failed, the Democrats suggested his temperament was inappropriate for the Court because he got angry at the accusations. When that failed, they moved to perjury.
That will fail too. It ought to. This process has been shameful, and while Kavanaugh ought to have handled questions about his 35-year-old high school yearbook better, that’s a pretty weak hook on which to hang a man.