How to decide who to believe in Kavanaugh, Rosenstein drama

Greg Nash

Increasingly, we are living in a world of “he said/she said,” “she said/she said,” “he said/he said.”  These conflicts are being played out not in the courts of law, where established rules govern, but rather in the court of public opinion where political predispositions seem to rule. Some people seem to believe that there are gender-based truth genes. They believe women because they are women, or men because they are men. Others seem to believe there is a political-based gene for truth-telling. They believe Republicans lie and Democrats tell the truth, and visa-a-versa.

The issues are far more complex. First, there is a continuum of truth-telling. Some people have photographic memories and remember everything precisely as events occurred. Most of us have selective memories in which our biases determine what we remember and what we forget.  Accordingly, many people truthfully misremember; that is, they believe that what they are remembering is true, even if the video camera would show something different.

{mosads}In the last several days, these issues have emerged in two different but somewhat related contexts. The first is the direct, dramatic conflict between the several women who have accused Supreme Court nominee Brett Kavanaugh of sexual misconduct and Kavanaugh’s categorical denials. The second involves Rod Rosenstein’s categorical denial of a New York Times story reporting that he had discussed invoking the 25th Amendment against President Trump and surreptitiously wearing a wire during a meeting with the president.

Several years ago my son, who is a film producer, and I worked on an idea for a script in which a “she said/he said” encounter played out in court. Each participant testified quite differently about the recollections of the event. What she remembered constituted sexual assault, while what he remembered constituted a consensual sexual encounter. Reminiscent of the great film “Rear Window,” our plot had a teenage voyeur secretly recording the encounter from his window across from where the event occurred.

Only at the end of the trial, after both sides testified to diametrically opposite perceptions, did the young man come forward with his video, which conclusively demonstrated that the recollections of both were imperfect and that the situation was far more nuanced and subject to multiple interpretations. I suspect that this fictional account reflects reality as often as reconstructive memories do.

Far too many people, including senators from both parties, have immediately invoked gender stereotypes: Women never lie. Men often lie. Men are assailants. Women are victims. There is absolutely no scientific basis for any of these conclusions. An entire academic area of pseudo-science has arisen in a phony effort to prove that women claiming sexual assault are always, or almost always, truthful. I have studied and taught the subject for decades and I have seen no authoritative study that comes close to establishing a gender-based predisposition for truth-telling or lying in the context of sexual assault. The so-called empirical arguments in support of these highly politicized conclusions are so deeply flawed as not to warrant serious consideration. Yet they prevail in the media and on both sides of the political spectrum. A predisposition toward lying, truth-telling, memory reconstruction, memory failure and other aspects of reporting the past are completely individualized. People must be judged individually and not by gender, political affiliation or ideology.

Beyond the testimony of the individuals involved in a “she said/he said” controversy, there is circumstantial evidence which can support either side. Circumstantial evidence itself can, of course, be based on true or false recollections, but sometimes there is objective circumstantial evidence, such as the entries in Brett Kavanaugh’s yearbook. But inevitably, such evidence is subject to multiple interpretations. A life well-lived as an adult is not conclusive proof of the absence of misbehavior as an adolescent.

The corollary of this truism is that adolescent behavior is not necessarily a predictor of adult behavior. Should a man in his 50s be judged by what he may or may not have done or said in his teen years? Should that depend on the nature of his teenage activities? Should doubts about whether allegations about teenage improprieties occurred be resolved by looking at the life lived thereafter? These and other probing questions must be asked after we hear testimony from all accusers and the accused. A great deal is at stake, because this is a lifetime appointment and because the accusations against Kavanaugh, if untrue, can be life destroying.

The stakes are far lower when it comes to whether to believe Rod Rosenstein or the New York Times. There is little doubt that Rosenstein will not serve beyond the midterm elections. Whether he resigns or is fired, his career in the Justice Department is over. The issue is whether he remains on between now and the midterm elections and whether he plays any continuing role in the Mueller investigation and in the decision about how to deal with the report that Mueller’s team will write. These are important, but somewhat transitional issues that will be resolved by political considerations.

We may never know whether Rosenstein seriously raised the prospect of a 25th Amendment coup d’état — and that’s what it would have been if any effort had been made to remove President Trump under the 25th Amendment. That amendment was intended to deal with a president like Woodrow Wilson who suffered a debilitating stroke, or a president like Ronald Reagan who was shot. It was never intended to allow a palace coup under which members of a cabinet could remove a president who they believed was behaving improperly or even erratically.

That’s what elections are for, and that is why we have our system of checks and balances in place. We live in an age where truth itself has become so politicized that we lack basic rules for arriving at objective conclusions. This is a dangerous phenomenon and we should pay far more attention to its implications for our system of governance.

Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School. He is the author of “Trumped Up: How Criminalizing Politics is Dangerous to Democracy” and “The Case Against Impeaching Trump.” He is on Twitter @AlanDersh and Facebook @AlanMDershowitz.

Tags Brett Kavanaugh Donald Trump Justice Department Rod Rosenstein Supreme Court

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