SCOTUS: No longer content with stacking, they're now dealing from the bottom of the deck

[twa]

 Sean Davis Retweeted

Ari Fleischer‏Verified account @AriFleischer 4h4 hours ago

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Ari Fleischer Retweeted Maxine Waters

This denial is angry. This suggests she doesn’t have the temperment to be a Member of Congress. When someone is accused of something they didn’t do, they must not be angry. They must not be defiant. They must not question the motives of the accuser. They must be calm and serene.

Ari Fleischer added,

Maxine WatersVerified account @RepMaxineWaters

Please read my statement on false allegations regarding the leak of the personal information of U.S. Senators:

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[bearrock]

33 minutes ago, Nerm said:

 

The standard for perjury is not just if he lied.  The lie has to be about a material fact that is important to the allegation.  The legal drinking age thing is not relevant to the issue of whether he assaulted Dr. Ford. Same thing as his response to the question of whether he watched Dr. Ford's testimony.  Perjury is not simply lying under oath, there are more elements to it, from what I understand.  I'm not making the case that he was truthful, I'm just saying that he did not commit the crime of perjury this week. At least that is my understanding, and I very well could be wrong.

I think it would be helpful if you could link the articles you read, which I assume will flesh out the argument against perjury in more detail, thus allowing people to more fairly critique the arguments.

 

Materiality can be a critical component of perjury when the alleged false statements are made in a trial.  Suppose a witness has a secret love for lavish clothing that he wants to keep from the public.  Let's say the prosecution is trying to establish the witness' presence at the scene of a robbery at Nordstrom.  In the course of foundational questions, the prosecutor asks what was the witness doing at Nordstrom and the witness lies about going there for a shopping spree, instead saying, I was just looking for a new belt.  I would say that's an example of nonmaterial false statement.

 

False statement at a confirmation hearing are much harder to pass off as nonmaterial.  Material statements being statements that has a natural tendency to influence or is capable of influencing, unless the witness is going off on a deep tangent, they are making statements that are meant to influence the Senate's decision.

 

His statement regarding denial of sexual promiscuity when combined with his previous fox news interview certainly has capacity to influence.  If the truth was that he did indeed drink to excess and was sexually promiscuous, even if a senator has no problem with such behavior in high school, the fact that he went on national tv and lied may lead one to hold that person in lower esteem.  Or the denial of blackouts.  If Kavanaugh was lying about the blackouts, then he cannot conclusively deny the incident with Dr. Ford never ever happened.  Doesn't mean he did it, but certainly material to the strength and significance of his denial.

 

Are every single one of his alleged lies perjury?  Perhaps there are argument to be made that it is not.  Can he deny materiality for all of them?  I don't think so.

 

[Nerm]

10 minutes ago, bearrock said:

I think it would be helpful if you could link the articles you read, which I assume will flesh out the argument against perjury in more detail, thus allowing people to more fairly critique the arguments.

 

Materiality can be a critical component of perjury when the alleged false statements are made in a trial.  Suppose a witness has a secret love for lavish clothing that he wants to keep from the public.  Let's say the prosecution is trying to establish the witness' presence at the scene of a robbery at Nordstrom.  In the course of foundational questions, the prosecutor asks what was the witness doing at Nordstrom and the witness lies about going there for a shopping spree, instead saying, I was just looking for a new belt.  I would say that's an example of nonmaterial false statement.

 

False statement at a confirmation hearing are much harder to pass off as nonmaterial.  Material statements being statements that has a natural tendency to influence or is capable of influencing, unless the witness is going off on a deep tangent, they are making statements that are meant to influence the Senate's decision.

 

His statement regarding denial of sexual promiscuity when combined with his previous fox news interview certainly has capacity to influence.  If the truth was that he did indeed drink to excess and was sexually promiscuous, even if a senator has no problem with such behavior in high school, the fact that he went on national tv and lied may lead one to hold that person in lower esteem.  Or the denial of blackouts.  If Kavanaugh was lying about the blackouts, then he cannot conclusively deny the incident with Dr. Ford never ever happened.  Doesn't mean he did it, but certainly material to the strength and significance of his denial.

 

Are every single one of his alleged lies perjury?  Perhaps there are argument to be made that it is not.  Can he deny materiality for all of them?  I don't think so.

 

 

Regarding links, looking at the Vox article I mentioned earlier, it is not actually addressing the testimony that he made this week.  It was from past testimony, my mistake (but that doesn't mean that I committed perjury  ?).  

https://www.vox.com/2018/9/7/17829320/brett-kavanaugh-supreme-court-hearing-perjury

 

There are a lot of articles addressing the issue of what it means to be a material statement, but there is also a lot of grey area about what is considered material and what isn't.  In general, I would say that nothing the judge said on Fox has anything to do with what would be considered perjury.  He wasn't under oath, and he can make up whatever he wants to in that setting.  

 

I think the key is to look at the specific words he used while under oath.  You then have to take those specific words and prove that he did not believe what he said at the time.  How can you prove that Kavanaugh remembered blackouts in the past, or considered what he was feeling when really drunk to be a blackout?  Those kinds of issues make perjury particularly difficult to prove.  Also, there is a lot of subjectivity.  Can you prove that Kavanaugh currently believes that his drinking 35 years ago was problematic and excessive?  It doesn't matter what others think, you have to show that when he made the statement, he knew that it was objectively false.

 

I think the way he avoided responding to questions directly, made statements that were tangentially related to the questions he was asked, and generally avoided giving specific information, will allow him to avoid any legal charges of perjury.

 

[DogofWar1]

Alright, so maybe false alarm?

 

Or even if they were told to limit scope, I would take this tweet as authorization to unlimit the scope.

 

 

[RedskinsFan44]

1 hour ago, Nerm said:

 

The standard for perjury is not just if he lied.  The lie has to be about a material fact that is important to the allegation.  The legal drinking age thing is not relevant to the issue of whether he assaulted Dr. Ford. Same thing as his response to the question of whether he watched Dr. Ford's testimony.  Perjury is not simply lying under oath, there are more elements to it, from what I understand.  I'm not making the case that he was truthful, I'm just saying that he did not commit the crime of perjury this week. At least that is my understanding, and I very well could be wrong.

I posted a Nate Silver comment on this above. His drinking is central to all of the allegations against him, as is his attitudes towards sex. People who knew him say he was a hard drinker, and his yearbook entry presents him as someone with a cavalier attitude towards women. He could have easily copped to drinking too much as many teens do, and presented his yearbook entry as false bravado. Instead he denied both, because both play directly into the allegations against him, He went on Fox and played the good boy who could not possibly have run around drinking too much. Yet when faced with direct questions instead of denying his drinking habits he riffed on how hard he worked, basically justifying his behavior without admitting it. His testimony was disqualifying in my eyes. It doesn't have to be perjury if you want to stand in judgement at the level of the Supreme Court, it just has to be lies under oath. Shows a disrespect for the court. Plus, as I pointed out above, his lies were to throw off the investigation. 

 

Add: as to the limitations on the FBI investigation, by far the most blatant is not allowing the FBI to find out when Judge worked at the Safeway, which goes directly to Ford's testimony.

Edited September 30, 2018 by RedskinsFan44

[visionary]

I wouldn’t take anything Trump said as fact.  Also keep in mind that McGhan is likely the one talking to the FBI, so Trump saying that may not matter or mean what it seems like it means.

[Nerm]

2 minutes ago, RedskinsFan44 said:

I posted a Nate Silver comment on this above. His drinking is central to all of the allegations against him, as is his attitudes towards sex. People who knew him say he was a hard drinker, and his yearbook entry presents him as someone with a cavalier attitude towards women. He could have easily copped to drinking too much as many teens do, and presented his yearbook entry as false bravado. Instead he denied both, because both play directly into the allegations against him, He went on Fox and played the good boy who could not possibly have run around drinking too much. Yet when faced with direct questions instead of denying his drinking habits he riffed on how hard he worked, basically justifying his behavior without admitting it. His testimony was disqualifying in my eyes. It doesn't have to be perjury if you want to stand in judgement at the level of the Supreme Court, it just has to be lies under oath. Shows a disrespect for the court. Plus, as I pointed out above, his lies were to throw off the investigation. 

 

I was wary about commenting on this issue, as I kind of expected to end up acting like the guy's defense attorney... and I don't even like him.  I'm just making a distinction between him being dishonest and him committing the specific crime of perjury.  I think he was stupid to portray himself as a boy scout.  But that is different from saying that he couldn't possibly currently view himself as someone who was not out of control or disrespectful to females when he was younger.  I think it is reasonable for people to think that his testimony was disqualifying, I'm really just arguing about the definition of perjury... and I fully admit that I am no expert on the issue.

 

[LadySkinsFan]

I'll try again.

 

The Court is the only trier of fact, there are no juries at the highest level of the Judiciary. Therefore, each justice is responsible for determining whether someone is telling the truth before the Court. 

 

If we have justices who lie under oath during their confirmation hearings, then how in hell can they be trusted to rule on the cases before them when they themselves are compromised?

 

Actually, the judges on the Courts of Appeal are subject to the same, they are the triers of fact in their courts too.

 

Perjury is lying under oath, anytime anywhere.

 

That's why Trump won't be questioned by Mueller, because he'll be under oath, and he lies incessantly.

Edited September 30, 2018 by LadySkinsFan

[visionary]

I’m still curious about this.  Where it seems like Kav was defining a threesome as specifically involving two women and one man unlike some of what he was actually alleged to be doing.

[NoCalMike]

Looks like this just got addressed in the thread recently, but I think the people saying they don't care if he lied about his drinking under oath are misunderstanding why that matters.

For comparison, when Bill Clinton lied about relations with Lewinsky, it was a gotcha moment.  They already knew it was a lie, Clinton knew it was a lie (I assume, he did it to try and save more embarrassment for his family, boy did that backfire)  It was wrong for sure, he should have perjured himself, but I think the reason most of the country sort of laughed it off was because it was obvious that the GOP was trying to go after Clinton for high crimes and all they could muster was a lie about a....well, you know.  Basically, him lying about Lewsinski wasn't the first step into uncovering something else, it was simply a stupid, foolish lie about sexual relations with a woman.

 

Contrast that with Kavanaugh.  His lying about his level of drinking matters not because of the lie itself, but because if it is determined to be a lie (which it pretty much has been) then that opens things up to his credibility on completely separate issues, such as whether he might have been super drunk, borderline black out drunk frequently or semi-frequently which means he could have done this to Ford and not even remembered it.  It basically removes his credibility and believably to simply say "This didn't happen, I remember...." because if you are drinking all the time and stumbling around drunk, there is a good chance you forgot a lot of nights during those years.  He isn't on trial for the drinking, but it the more he lies about his drinking, the more it looks like he is trying to cover something up, where as when Clinton lied about sexual relations, no one thought it was because that lie suddely connected him to a crooked land deal.

[bearrock]

17 minutes ago, Nerm said:

 

Regarding links, looking at the Vox article I mentioned earlier, it is not actually addressing the testimony that he made this week.  It was from past testimony, my mistake (but that doesn't mean that I committed perjury  ?).  

https://www.vox.com/2018/9/7/17829320/brett-kavanaugh-supreme-court-hearing-perjury

 

There are a lot of articles addressing the issue of what it means to be a material statement, but there is also a lot of grey area about what is considered material and what isn't.  In general, I would say that nothing the judge said on Fox has anything to do with what would be considered perjury.  He wasn't under oath, and he can make up whatever he wants to in that setting.  

 

I think the key is to look at the specific words he used while under oath.  You then have to take those specific words and prove that he did not believe what he said at the time.  How can you prove that Kavanaugh remembered blackouts in the past, or considered what he was feeling when really drunk to be a blackout?  Those kinds of issues make perjury particularly difficult to prove.  Also, there is a lot of subjectivity.  Can you prove that Kavanaugh currently believes that his drinking 35 years ago was problematic and excessive?  It doesn't matter what others think, you have to show that when he made the statement, he knew that it was objectively false.

 

I think the way he avoided responding to questions directly, made statements that were tangentially related to the questions he was asked, and generally avoided giving specific information, will allow him to avoid any legal charges of perjury.

 

 

Your post raises materiality and willfulness issues, two distinct issues.

 

Materiality is clearer in my view.  Whether his statements, if they were willful false statements, qualify as material false statements seems pretty clear.  (BTW, obviously fox news interview is not the perjury.  But if he makes false statements under oath to cover up the fact that he lied on national tv, within the context of a confirmation hearing, that would be material).  Materiality is tested with the assumption that the statements are false.  Put another way, assuming that he lied, were those lies material.

 

You also raise the issue of proof with respect to willful and knowing.  Mens rea of the accused is litigated everyday in criminal proceedings across the country.  How can the jury know whether the killing was intentional or not?  How can the jury know whether the false statement was willful and knowing?  Like any other element of the crime, you look at the evidence.  Perhaps a roommate testifies that they talked about Kavanaugh's drinking issues, discussing incidents when Kavanaugh drank so much that he blacked out.  With respect to sexual promiscuity and lies on fox news interview, that's an objective fact.  Did he have sex before college?  Unless he's claiming amnesia, that would not need the fact finder to be able to read Kavanaugh's mind.  

 

Will Kavanaugh face perjury charges?  Probably not due to complex combination of political and pragmatic reasons as much as legal.  But to believe that none of his problematic statements were perjury would strain credulity in my opinion. 

10 minutes ago, LadySkinsFan said:

I'll try again.

 

The Court is the only trier of fact, there are no juries at the highest level of the Judiciary. Therefore, each justice is responsible for determining whether someone is telling the truth before the Court. 

 

Appellate courts do not adjudicate issues of fact.  All evidences must be viewed in light most favorable to the prevailing party below.  

[bearrock]

1 hour ago, LadySkinsFan said:

Here's another thought about the Gable case: the Court can change the schedules of any case anytime.

 

So quoting schedules now is meaningless.

 

Respondent's brief isn't even due until October 25th.  Petitioner just submitted his brief on September 4th.  While it is theoretically possible that SCOTUS could suddenly move up the due date for the response brief and then schedule oral arguments right after (I say theoretical in the sense that SCOTUS manages its own docket and there would be no other reviewing authority), it's about as likely as Trump resigning tomorrow.  I'm not sure where you are getting the Gamble theory from but I don't think it's a reliable or credible source for you to rely on going forward. 

[LadySkinsFan]

If Kavanaugh is confirmed, I don't trust anything that those five Republicans on the Court will do.

Edited September 30, 2018 by LadySkinsFan

[Nerm]

I hear what everyone is saying on this issue, and I could very well be wrong on the points I made.  I don't view his dishonesty as irrelevant.  

 

I'm going to bow out of this discussion now.  I tend to avoid discussing things that relate to politics, but I occasionally put in my 2 cents... then regret it soon after.  No disrespect to those who engaged me on these issues.  I will continue to read this thread, and I enjoy the contributions of those discussing these issues.

[RedskinsFan44]

28 minutes ago, Nerm said:

 

I was wary about commenting on this issue, as I kind of expected to end up acting like the guy's defense attorney... and I don't even like him.  I'm just making a distinction between him being dishonest and him committing the specific crime of perjury.  I think he was stupid to portray himself as a boy scout.  But that is different from saying that he couldn't possibly currently view himself as someone who was not out of control or disrespectful to females when he was younger.  I think it is reasonable for people to think that his testimony was disqualifying, I'm really just arguing about the definition of perjury... and I fully admit that I am no expert on the issue.

 

OK. But as you say, is perjury the bar for being confirmed (though it is an interesting question, I don't know)? Feel free to argue ideas, that is what we are here for. 

[grego]

55 minutes ago, RedskinsFan44 said:

I posted a Nate Silver comment on this above. His drinking is central to all of the allegations against him, as is his attitudes towards sex. People who knew him say he was a hard drinker, and his yearbook entry presents him as someone with a cavalier attitude towards women. He could have easily copped to drinking too much as many teens do, and presented his yearbook entry as false bravado. Instead he denied both, because both play directly into the allegations against him, He went on Fox and played the good boy who could not possibly have run around drinking too much. Yet when faced with direct questions instead of denying his drinking habits he riffed on how hard he worked, basically justifying his behavior without admitting it. His testimony was disqualifying in my eyes. It doesn't have to be perjury if you want to stand in judgement at the level of the Supreme Court, it just has to be lies under oath. Shows a disrespect for the court. Plus, as I pointed out above, his lies were to throw off the investigation. 

 

Add: as to the limitations on the FBI investigation, by far the most blatant is not allowing the FBI to find out when Judge worked at the Safeway, which goes directly to Ford's testimony.

 

"And yes, there were parties. And the drinking age was 18, and yes, the seniors were legal and had beer there. And yes, people might have had too many beers on occasion and people generally in high school – I think all of us have probably done things we look back on in high school and regret or cringe a bit, but that’s not what we’re talking about."

 

I see this a bit like what Nerm is saying - he's not saying directly he did it, but he is implying it. That last sentence about 'I think all of us have done X' is a way of saying you did it, but it's not a big deal. The indirectness, in an attempt to soften the impact, leaves his comments open to some interpretation. 

 

(sorry for the big font.... Phone...) 

Edited September 30, 2018 by grego

[visionary]

Hmm.

 

 

[RedskinsFan44]

14 minutes ago, grego said:

 

"And yes, there were parties. And the drinking age was 18, and yes, the seniors were legal and had beer there. And yes, people might have had too many beers on occasion and people generally in high school – I think all of us have probably done things we look back on in high school and regret or cringe a bit, but that’s not what we’re talking about."

 

I see this a bit like what Nerm is saying - he's not saying directly he did it, but he is implying it. That last sentence about 'I think all of us have done X' is a way of saying you did it, but it's not a big deal. The indirectness, in an attempt to soften the impact, leaves his comments open to some interpretation. 

 

(sorry for the big font.... Phone...) 

Obfuscating. Seniors were legal (I really wasn't), people (but not me) might have had too many beers on occasion, how dare you imply Renate was easy!?!? I can't believe the Ds are dragging her name through the dirt!

 

He's implying he didn't do it without directly saying it.

 

Add: Kanye performing as a Perrier bottle is a nice diversion,

Edited September 30, 2018 by RedskinsFan44

[DogofWar1]

35 minutes ago, visionary said:

Hmm.

 

 

 

Yup.  Absolutely right.  Trump's tweets have been determined time and time again to be official statements of the President.

 

There's a reason he has been ordered not to block people.

 

FBI should view their investigation as without limits now and if anyone tries to stop them, this tweet is exhibit 1.

[visionary]

 

[visionary]

 

[Fergasun]

Here is a remarkable question that I have. How was Dr. Ford able to name Kavanaugh, Mark
Judge , PJ... all the other guys on his calendar if they didn't run in the same social circles -- as Brett alluded to. If this was all some Clinton conspiracy... I mean.

No effin' ess... that is why they are deny, deny, deny... "no recollection of party in question....". There was a party without Ford... so fishy.

[Burgold]

5 hours ago, visionary said:

 

I thought they were supposed to satirize the hearing.. not faithfully reproduce it?

[skinsmarydu]

15 hours ago, Larry said:

 

Mill give the same reasoning I applied to Bill Clinton. 

 

I dont have a problem with somebody lying under oath, if the question is about something completely unrelated, being asked purely for the purpose of getting the subject to admit something to make him politically vulnerable. 

 

Whether Kavenaugh was ever drunk, or whether Bill Clinton cheated on his wife, has nothing to do with committing a crime. The only reason for asking it is to try to get a politically embarrassing sound bite. 

But that's what cross-ex IS...the chance to catch the witness in a lie.

(And said witness has already sworn to tell the truth. )

That's when one lie is compounded upon the lie that the witness would tell the truth. Two lies right there. 

Not to sound snippy, but how many lies are you comfortable with? 

[Cooked Crack]

13 minutes ago, Burgold said:

I thought they were supposed to satirize the hearing.. not faithfully reproduce it?

If anything this skit muted some of the hearing. Lindsey is way more muted.