Outside Counsel to Question Kavanaugh. Good Idea, or Not?

Brett Kavanaugh is sowrn-in at a Senate Judiciary Committee hearing on his nomination to be U. S. Circuit Judge for the Ninth Circuit. (CQ Roll Call via AP Images)

I’ll just tell you, right off the bat, I think it’s a GOOD idea. If you strongly disagree, you can stop reading here. If you want to know why, I’ll explain my reasoning.

First off, I’m a lawyer, so I have that inherent bias that lawyers can get to the truth–if that is what they are trying to do. We all know that lawyers are “hired guns” retained for the purpose of putting their clients’ spin on the facts and law of any given case. But there are limits to the amount of “spin” lawyers can do. For instance, their arguments must be in good faith and have a sound basis in the law. In other words, there must be some case law, somewhere, however tenuous or however strained the argument may be, that supports the attorney’s position.

And the position must be taken in good faith, that is not for an improper purpose, not to subvert the law, not to gain some improper legal advantage, to unlawfully avoid legal consequences. Things like that.

Lawyers get in trouble for doing otherwise and clients lose cases and lots of money in legal fees.

I’ve been around the track a few times, and I can tell you, sadly, that Senators are mostly inept when it comes to questioning witnesses.

Okay, all that applies when lawyers are in litigation. The hearing on Thursday is not litigation, the Senators, nor their outside counsel are presenting their case to a court of law. Arguably the same considerations do not necessarily apply.

I’d like to think that lawyers share one commonality: A desire to learn the truth.

I became a lawyer because I wanted to help people. I’d like to think that over my 35 years of practice, I did. I didn’t pursue my career because I wanted to make money (which is a good thing, as it turned out). Most of my professional life, I spent in the public sector. as City Attorney, Assistant Attorney General, and investigating citizens’ complaints of police misconduct for a Police Commission. I know a little bit about investigations. I know a lot about conducting interviews and interrogations, and I know how to discern when someone is being truthful.

There are ways of doing it. Ways that most Senators do not know, and besides, making political points is usually more important to the Senators than discerning the truth.

When I was working for the Attorney General, I investigated official misconduct of elected officials who were not subject to impeachment proceedings. I traveled around the state subpoenaing documents, taking sworn statements, interviewing witnesses.

Interviewing police misconduct, I interviewed thousands of police officers from patrol to Chief, citizens, witnesses and “specialists” in police practices.

I’ve been around the track a few times, and I can tell you, sadly, that Senators are mostly inept when it comes to questioning witnesses.

I’d like to think that lawyers share one commonality: A desire to learn the truth.

For instance, Judge Kavanaugh has issued unequivocal, blanket denials to all of the allegations that have been leveled against him. It is unlikely that he would ever move off those denials. Therefore, a lawyer might approach him as follows (and this is where an outside counsel might prove prudent–as long as fact finding is the goal):

Outside counsel (OC): “You have previously stated under oath that you have never engaged in the types of activities of which you have been accused by the various alleged victim’s who have come forward, isn’t that correct?”

Judge Kavanaugh (JK): “That is correct.”

OC: “Judge Kavanaugh you have practiced law for 25 years and have served on the federal bench for the past 12, isn’t that correct?”

JK: “That is correct.”

OC: “Do you have a general understanding of the definition of sexual assault?”

Counsel would then move the witness in the direction of ascertaining his understanding of the definition of sexual assault. Counsel would then ask the witness whether the nonconsensual touching of private body parts could fall under the definition of sexual assault.

Once counsel ascertained the witnesses understanding in that area, counsel might move on to the witnesses understanding of right versus wrong, such as,

OC: “Notwithstanding the presence of a statute defining “sexual assault” wouldn’t you agree that the nonconsensual touching of another person’s private parts is wrong?”

I believe it would be very difficult for a witness to deny the morality of such circumstances.

Regarding Judge Kavanaugh’s alleged binge drinking, counsel might pursue the following:

OC: “Judge Kavanaugh, did you ever drink to excess when you were in high school?”

Now, the witness might deny that he did ever drink to excess in high school, but he might that he did, on occasion, drink. You see, this is very similar to when I used to prosecute speeding tickets when I was City Attorney. Typically, the police officer would write on the ticket that he observed the defendant traveling, for example, 30 mph in a 20 mile-per-hour zone. Invariably, the defendant would deny that he or she was driving 35 per hour. I would then ask, “Might you have been driving 25 mph instead?” Usually, the defendant would respond, “Yes, I might have been driving 25 but I definitely was not driving 30 mph.” I would then rest my case and the judge would declare the defendant guilty as charged. You see, I didn’t have to prove that the defendant was actually driving 30 mph, I just had to prove that the defendant was driving over the posted speed limit. This is similar to what I am talking about here.

Now back to Judge Kavanaugh’s questioning. All we are looking to do is to get the witness to admit that he drank alcohol while he was a high school student. Then counsel would follow up with a question about the legal drinking age in Maryland at the time he was in high school, concluding with, “So at the time when you were 17 [sic] and drinking alcohol when you were a student in high school, you knew the legal age was 21?”

And so counsel, if they are worth their salt, should be able to lay the framework for an assessment of the witness’ credibility by laying out facts, getting the witness to accede to those facts and then letting other witnesses fill in the blanks that would show to a reasonable person that the witness was not truthful.

Rather than making this a hit-or-miss situation, why not embed it into our legislative system?

Now, flagging honesty, I don’t know if such an office exists, but if it doesn’t maybe it should. In my world, it would be a bipartisan office. The “chief counsel” would be appointed by the Speaker Pro Temp (like McConnell) for a term of 10 years. One of its chief missions would be to “interrogate” presidential appointees, and attendant witnesses, at senate hearings.

By a specified date and time prior to the hearing, all Senators on the Judiciary Committee would be required to submit, in writing, all their questions, and a list of witnesses they would have called to testify together with a proffer (a statement setting forth the expected nature of the testimony of each witness and a summary of its relevance to the proceedings). The counsel’s office would then, with full knowledge of the areas of inquiry and the facts sought to be elicited, compile a list of questions for the nominee, which would be asked at the hearing, together with followup questions.

Senators on the committee would then be given a brief amount of time, say 10 – 15 minutes each, to interpose their own questions, after which the senate counsel would be given a set amount of time to close with his own followup questions.

If we as a people are truly concerned with vetting and appointing fully qualified nominees to all branches of government, but especially to the United States Supreme Court, it would seem prudent that setting forth a process which removes the vetting and public interviewing portion as far as possible from politics, while still providing for participation of the Senate committee members in both the setting of parameters and issues to be covered in the hearings and of the witnesses to be presented beforehand, and by their questioning of the nominee and witnesses themselves, would provide a much more meaningful process evoking real information about the quality, qualities and fitness of nominees to these very important positions.

In case you were wondering . . .