Judiciary

Kavanaugh report shows why the presumption of innocence is key

"All the presumptions of law independent of evidence are in favor of innocence," the Supreme Judicial Court of Massachusetts said in 1850. "Every person is presumed to be innocent until he is proved guilty." The United States Supreme Court later called this idea "undoubted" and "unquestioned" rather than what "may be" or "could be" the presumption of innocence. In international law, this principle can be found in the 1948 Universal Declaration of Human Rights, 1950 European Convention on Human Rights, 1966 International Covenant on Civil and Political Rights, and 1969 American Convention on Human Rights, to name a few.

One of the most disturbing things to emerge from the failed campaign to keep Justice Brett Kavanaugh off the Supreme Court is the willingness of some, including powerful senators, to abandon this human right. They gambled that, by weaponizing sordid gossip, they could simply bully their way past the presumption of innocence. That is why the principle is innocent until "proven" guilty, not innocent until "accused" guilty.

Now we have the verdict. In a report this month, the Senate Judiciary Committee detailed its investigation of the sexual misconduct claims against Kavanaugh and "found no witness who could provide any verifiable evidence to support any of the allegations brought against" him. It added that "following the separate and extensive investigations by both the committee and the FBI, there was no evidence to substantiate any of the claims of sexual assault made against Justice Kavanaugh."

The report identifies some signs that, at least in hindsight, the allegations were a little fishy. The FBI had conducted a wide ranging and open ended background investigation of Kavanaugh every time he was appointed to a significant federal government position. That happened six times over a span of 25 years and included interviews with more than 150 different people. None of them turned up a whisper of sexual misconduct.

Senator Dianne Feinstein not only kept a letter from Christine Blasey Ford, the first accuser, secret for more than six weeks, she then only briefed Senate Judiciary Committee Democrats but not Republicans. That accuser refused to produce the polygraph she took, members of her family refused to provide statements or participate in interviews, and her attorney denied all requests for an interview at any location.

Nonetheless, the Senate Judiciary Committee contacted 17 individuals with information relevant to her allegations but, in the end, the witnesses that Ford "identified as individuals who could corroborate her allegations failed to do so" and in fact contradicted her. Moreover, a second accuser, Deborah Ramirez, refused seven Senate Judiciary Committee requests for material that could support her allegations. The New York Times spent weeks interviewing dozens of people and failed to find any evidence to support her. Neither did the FBI or Senate Judiciary Committee.

The other accuser wannabes are not worth mentioning, except to say that calling what they said "allegations" is to give allegations a bad name. Senate Judiciary Committee Chairman Chuck Grassley referred three of them to the FBI and Justice Department for investigation of potentially violating federal laws that prohibit obstruction and lying to Congress.

This is a chance for us to seriously consider what kind of society we want to live in today. The 1948 American Declaration of the Rights and Duties of Man states that "every accused person is presumed innocent until proven guilty." So does the 2000 European Union Charter of Fundamental Rights. All of that is fine until it is tested. As this new report shows, actions do speak louder than words, and some people have failed miserably.

Thomas Jipping is deputy director of the Edward Meese Center of Legal and Judicial Studies and senior legal fellow at The Heritage Foundation.

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