Ford has no right to set conditions for Kavanaugh testimony

Congress is accustomed to conditional spending and conditional adjournments. It is not as accustomed to conditional witnesses. Nevertheless, Dr. Christine Blasey Ford has made her testimony on allegations against Supreme Court nominee Brett Kavanaugh conditional on the FBI launching an investigation into whether he tried to rape her in high school.  

The new condition conflicts with assurances from Ford’s counsel that she was prepared to state her allegations under oath before the committee if it delayed its scheduled vote on Kavanaugh.  

Ford’s demand is, to put it simply, out of line, both with her prior statements and with congressional precedent. It is not that the FBI has not investigated such allegations; it did so with Clarence Thomas. However, there is no precedent for a quid pro quo demand for testimony by a witness. Individuals can certainly refuse to testify, yet conditioning testimony on a criminal investigation by a federal agency is well beyond the province of any witness. There may indeed be a basis for reopening the FBI background investigation, but the priority is to get both the testimony of Ford and Kavanaugh under oath.   

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This demand is the latest twist in an increasingly confusing record. Ford originally sent a letter to Congress to ask that her allegations be considered by the committee before voting on Kavanaugh. She then demanded that she be left in anonymity — denying Kavanaugh an opportunity to know who had accused him. After her letter was leaked to the media, Ford came forward publicly and said she would testify before the committee. Now she is saying she will not testify unless her demand for an FBI investigation is met.

The letter from Ford’s counsel states, "While Dr. Ford’s life was being turned upside down, you and your staff scheduled a public hearing for her to testify at the same table as Judge Kavanaugh in front of two dozen U.S. Senators on national television to relive this traumatic and harrowing incident."

She added that she has no intention of appearing for an “interrogation by Senators who appear to have made up their minds that she is 'mistaken' and 'mixed up.' ” However, it could hardly be a surprise to Ford that Republican senators would be skeptical or hostile to her claim.  

Indeed, we do not know a great deal about Ford’s allegations because we have not heard from Ford. A Senate confirmation vote was correctly delayed to do precisely that. Ford has every right to expect to be heard on these very serious allegations. She does not have the right to set conditions before testifying under oath.

Where Ford is correct is that she should not be required to sit next to Kavanaugh to give such testimony, if that was indeed the plan. Such an arrangement would be a clearly inappropriate condition by the committee. Ford says Kavanaugh tried to rape her and that she has dealt with that trauma for years; it would be outrageous to require her to sit next to the man who she alleges sexually assaulted her.

While Democratic senators such as Charles SchumerCharles (Chuck) Ellis SchumerFacebook reeling after damning NYT report Schumer warns Trump to stay out of government funding negotiations Schumer predicts Nelson will 'continue being senator' if 'every vote counted' MORE (N.Y.) and Mazie HironoMazie Keiko HironoSenate Dems sue to block Whitaker from serving as attorney general Warren, 2020 Dems target private immigration detention center operators Hillicon Valley: Facebook reeling after NYT report | Dems want DOJ probe | HQ2 brings new scrutiny on Amazon | Judge upholds Russian troll farm indictments | Cyber moonshot panel unveils recommendations MORE (Hawaii) have already declared they believe Ford, there has been no testimony from either party. Moreover, while Democrats have insisted Ford has a “right to be believed,” there are basic principles of due process that establish a right to be heard, not a right to be believed. Kavanaugh categorically denies these allegations; he has no less and no more right to be believed. This, apparently, was the position of ranking committee member Sen. Dianne FeinsteinDianne Emiel FeinsteinTrump set to have close ally Graham in powerful chairmanship Lawmakers say California will eventually get emergency funding for fire relief Top Dems: DOJ position on Whitaker appointment 'fatally flawed' MORE (D-Calif.), who said Ford had been "profoundly impacted" by her experience and “I can't say everything is truthful, I don't know."

If Ford refuses to testify, she could resolve this matter for members on the fence in favor of Kavanaugh. No question, walking into that committee room would be a terrible burden for anyone; it takes courage to come forward in any case of sexual assault, and doubly so when you must do so before tens of millions of people. However, Ford asked Congress to take her allegations seriously and it is doing so. Either she puts her allegations on the record under oath or those allegations will remain unproven and unsupported.

I have been critical of the degree of documents withheld from the Senate as well as the unilateral labeling of other documents as “Committee confidential.” I still believe further disclosure should be made of Kavanaugh’s record before a final vote. Moreover, Democrats are correct about the needless expedited pace of this confirmation. However, if Ford does not testify, it would magnify criticism of Democrats holding this letter since July, as well as suspicions over the timing of leaking it just before the committee vote. Democrats have made no secret of their desire to force a vote to be held after the midterm elections in November. An FBI investigation would conveniently accomplish that.

It would be useful to interview any witnesses, and that may be where this should lead. However, Democrats themselves did not move with particular dispatch since July in locating possible witnesses. As for Ford, her counsel stated publicly that it is simply not her job (or her counsel’s) to determine if there are corroborating witnesses. So, while arranging a polygraph examination, her counsel did not reportedly seek out witnesses to support the claims of her client, including high school friends.

In reality, Kavanaugh was more likely to face an “interrogation” than Ford. Republican senators were clearly leery of being seen as roughing up a sexual assault victim, and potentially losing female voters in the midterms. There was no such reluctance with Kavanaugh, who was always looking at an aggressive, unrelenting examination by Democrats.

The key to holding testimony is to establish under oath exactly what these two individuals remember; it might not be much beyond what is already known. Feinstein stated this week that she could not recall whether she contacted Ford six weeks ago. Yet, these witnesses would be expected to recall details from 36 years ago. Once their testimony is locked in, the Senate — and the public — will have a better idea of whether further investigation is warranted.  

The only condition for either witness that will be recognized by the Senate is that their testimony will be truthful. If Ford will not testify, the Senate committee would have grounds to move toward to a final vote. That may avoid the “interrogation,” only to clear the path to confirmation.

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