By Brian L. Owsley on September 25, 2020.
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Introduction
It may be difficult to recall any political drama before the coronavirus pandemic and before the impeachment process for President Donald Trump. However, there was a time when many, were advocating for the impeachment of Justice Brett Kavanaugh.
With the recent decision to acquit President Trump following the Senate impeachment trial, along with the recent global pandemic that has wreaked havoc across the United States, now may not be the best time to discuss the impeachment of Justice Brett Kavanaugh. Nonetheless, it is the most opportune time with the November election coming shortly.
This Article does not purport to establish whether Justice Kavanaugh should be impeached or whether he lied during his testimony before the Senate Judiciary Committee in September 2018. Instead, this Article discusses the implications of Justice Kavanaugh’s statements under oath along with the possible consequences if such statements can be established as untruthful.
In Part I, this Article addresses Justice Kavanaugh’s nomination and confirmation as well as the calls for his impeachment in 2018 and 2019. Next, Part II analyzes the history of impeaching federal judges, including mechanisms by which such Senate impeachment trials happen within a constitutional framework. In Part III, this Article discusses the only impeachment of a Supreme Court Justice, placing it in a historical context. Based on the unsuccessful impeachment of Justice Samuel Chase along with the current divisive political climate, this Article posits that it may be more likely that Justice Kavanaugh be removed not based on impeachment, but on a federal prosecution for either perjury or making a false statement. Part IV provides not only these two potential federal offenses, but four distinct potential factual predicates for such prosecutions.
I. Elevating Justice Brett Kavanaugh to the Supreme Court and its Aftermath
A. The Nomination and Confirmation of Justice Brett Kavanaugh
On June 27, 2018, Associate Supreme Court Justice Anthony Kennedy announced that he would retire from the United States Supreme Court effective July 31, 2018.[1] On July 9, 2018, President Trump nominated Judge Brett Kavanaugh of the United States District Court of Appeals for the District of Columbia to replace Justice Kennedy.[2]
On September 4, 2018, the Senate Judiciary Committee began hearings on the Kavanaugh nomination with some preliminary matters, including his statement as the nominee.[3] The next day consisted largely of questions from Senators about Justice Kavanaugh’s views on various legal questions or scenarios, about which he declined to opine.[4] On September 6, 2018, the hearings devolved into recriminations on whether emails and memoranda were provided to the Senators.[5] On September 7, 2018, the Senators heard from Justice Kavanaugh’s friends and allies, as well as people who opposed his nomination, along with legal experts on both sides of the spectrum.[6] The three days of hearings did not involve any allegations of sexual misconduct, including those raised by Dr. Christine Blasey Ford.
In July 2018, Dr. Ford discussed with staff members of Representative Anna Eshoo, her member of Congress about her experience with Justice Kavanaugh during high school.[7] Because Dr. Ford feared going public with her information, it was agreed that she would prepare a letter that Representative Eshoo’s office would provide to Senator Feinstein, who was the ranking Democrat on the Senate Judiciary Committee.[8] After the press learned of this letter, Dr. Ford felt she had to go public with her allegation.[9]
On September 27, 2018, the Senate Judiciary Committee conducted an additional day of confirmation hearings to address allegations of sexual misconduct by Justice Kavanaugh in high school.[10] Specifically, Dr. Ford alleged that Justice Kavanaugh, with his high school friend Mark Judge, followed her upstairs at a small house party in suburban Maryland during the summer in the early 1980s.[11] She asserted that he pushed her into a bedroom and jumped on top of her pinning her to a bed and groping her while he tried to take her clothes off.[12] When she screamed, he put his hand over her mouth, causing her to believe that she would choke to death.[13] She only managed to escape when Mark Judge jumped on top of both of them, causing them all to tumble, and she fled.[14]
On September 28, 2018, the Committee voted largely along party lines to send the nomination to the full Senate, but with the proviso that the Federal Bureau of Investigation (“FBI”) conduct an investigation into the sexual assault allegations by Dr. Ford.[15] Based on this vote, President Trump ordered the FBI to conduct a supplemental investigation and provide a report within a week.[16] The White House received the supplemental report on October 4, 2018.[17]
Senators were permitted to review the supplemental FBI report one at a time. Democratic Senators decried this FBI investigation as inadequate and a sham.[18] On October 6, 2018, the Senate voted 50-48 to confirm Judge Kavanaugh to the Supreme Court with one Democratic Senator voting to confirm and one Republican Senator simply voting present without voting on the merits.[19]
B. The Calls for Impeachment Post-Confirmation
Shortly after Kavanaugh’s confirmation, the suggestion of impeaching Justice Kavanaugh began to circulate due to allegations that he lied to the Senate during his hearings.[20] For example, in a television interview, Harvard law professor Alan Dershowitz cautioned that such an approach “would be foolish and unconstitutional to try to impeach . . . a justice of the Supreme Court for actions he allegedly took when he was a private citizen, 17 years old.”[21]
After the publication of a book in September 2019 by two New York Times reporters, the calls to impeach Justice Kavanaugh began again.[22] Many candidates for the Democratic presidential nomination called for his impeachment. Julián Castro was the first candidate to weight in claiming that “It’s more clear than ever that Brett Kavanaugh lied under oath. He should be impeached.”[23] For example, Senator Kamala Harris asserted that “Brett Kavanaugh lied to the US Senate” and “was put on the Court through a sham process and his place on the Court is an insult to the pursuit of truth and justice. He must be impeached.”[24] Senator Elizabeth Warren maintained that “Confirmation is not exoneration, and these newest revelations are disturbing. Like the man who appointed him, Kavanaugh should be impeached.”[25]
II. The Constitution Provides Little Guidance Regarding Impeachment of Federal Judges
The United States Constitution establishes that “[t]he House of Representatives . . . shall have the sole Power of impeachment.”[26] If the House of Representatives votes for articles of impeachment, then “[t]he Senate shall have the sole Power to try all Impeachments.”[27] In order to be found guilty and removed, at least two thirds of the Senators must vote for the president’s removal.[28] Additionally, “all Civil Officers of the United States shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”[29] Finally, the Constitution explains that “[t]he judges, both of the supreme and inferior courts, shall hold their offices during good behavior.”[30] This requirement of good behavior may provide a basis for impeachment in addition to high crimes or misdemeanors. Beyond these few simple clauses, there is not any additional mention of impeachment regarding judges in the Constitution.
Throughout American history, the House of Representatives has only impeached fifteen judges, including one Supreme Court justice.[31] Moreover, the Senate has only convicted and removed eight federal trial judges.[32] Most recently, the Senate has not conducted trials with the full one hundred Senators presiding as jurors. Instead, a special Senate committee conducted a trial with its members serving as the presiding jurors.
In Hastings v. United States,[33] United States District Court Judge Alcee Hastings challenged his Senate conviction, arguing that his trial violated due process. Specifically, his special committee was comprised of six Republicans and six Democrats presiding over a hearing of exhibits and fifty-five witnesses.[34] Instead of hearing the evidence regarding Judge Hastings’ articles of impeachment, the full Senate listened to two hours of arguments from both sides before voting to convict him.[35] The Hastings court found that conducting an impeachment proceeding in this manner before only a dozen Senators violated Judge Hastings’ constitutional rights and remanded the matter to the Senate to conduct a new impeachment trial.[36]
Judge Hastings’ victory was destined to be a fleeting one. The government appealed the order for the Senate to retry him, and during that interim, United States District Judge Walter Nixon was pursuing his own challenge to a similar Senate trial and conviction.[37] In addressing a similar Senate trial to that of Judge Hastings, the Supreme Court concluded in Nixon v. United States that the Senate was permitted within the confines of the Constitution to promulgate rules on how to try judicial impeachments, and thus, Judge Nixon’s ten-Senator special committee trial was sufficient.[38] Consequently, the federal appellate court vacated the favorable decision in Judge Hastings’ action, upholding his Senate conviction.[39]
Ultimately, the Constitution does not provide much guidance regarding the standards for when impeachment is appropriate. In Nixon, the Supreme Court avoided the question and instead deferred to Congress.
III. The Only Impeachment and Senate Trial: Justice Samuel Chase
The only impeachment and Senate trial of a Supreme Court Justice involved Samuel Chase, a nominee of George Washington. Justice Chase was an ardent Federalist who had annoyed President Thomas Jefferson and his Democratic-Republicans.
A. The Seeds of Justice Chase’s Impeachment are Sown in the Presidential Election of 1800
In the 1800 presidential election, the United States experienced one of the most hotly contested races. In a bitter campaign among three candidates—John Adams, Aaron Burr, and Thomas Jefferson—Jefferson received a majority of the popular vote but was tied in the electoral vote with Burr.[40] The clear loser was the incumbent, Adams, who was a Federalist.[41] Ultimately, the House of Representatives voted to select Jefferson as president over Burr, in part, because of the political machinations of Federalist Alexander Hamilton in favor of Jefferson.[42]
During the lame-duck period, President Adams and the Federalists endeavored to strengthen their hold on the government before Thomas Jefferson and his allies took office.[43] On February 13, 1801, President Adams signed the Judiciary Act of 1801 into law, which the lame-duck Federalist Congress passed in December 1800 during its last session.[44] Significantly, the Act reduced the number of Supreme Court Justices from six to five, thus decreasing the opportunity for the Democratic-Republican to gain control of the Court.[45] The Constitution is silent as to the required number of Justices on the Court. The Act also created sixteen new federal appellate judges as well as other judgeships.[46]
On February 27, 1801, the Federalist Congress adopted the District of Columbia Organic Act authorizing forty-two justices of the peace.[47] On March 2, 1801, President Adams nominated forty-two new justices of the peace.[48] On March 3, 1801, the Senate confirmed the justice of the peace nominations, but several commissions remained undelivered at midnight.[49] On March 4, 1801, Jefferson took office and directed Acting Secretary of State Levi Lincoln to withhold the justice of the peace commissions.[50] On May 2, 1801, James Madison arrived to take over the office of the Secretary of State. On April 29, 1802, Congress repealed some provisions of the Judiciary Act of 1801.[51]
President Adams appointed the various judges during the last two weeks of his term. Most of them were not only confirmed by the Senate but also received their commissions. Understandably, President Jefferson was livid, seeing this as the Federalists’ deliberate attempt to defy the popular will, hoping to maintain some control of the federal government.
The failure to provide commissions to Federalist judges during the frantic last days of the Adams lame-duck administration adversely impacted William Marbury because he did not receive his commission in a timely manner from Adams’ Secretary of State.[52] Consequently, Marbury sued Jefferson’s new Secretary of State, James Madison, seeking a mandamus ordering the deliverance of his commission.[53] It was in this milieu that the Supreme Court issued Marbury v. Madison and in which ardent Federalists like Justice Chase were viewed with disdain.
B. Justice Chase’s Ardent Federalist Politics Draws the Ire of President Jefferson and His Supporters
In May 1803, Justice Chase, while presiding in Baltimore, admonished a grand jury regarding the repeal of the Judiciary Act of 1801:
The late alteration of the federal judiciary . . . and the recent change in
our state constitution, by the establishing of universal suffrage . . . will
. . . take away all security for property and personal liberty . . . and our
Republican constitution will sink into mobocracy, the worst of all pop
ular governments.[54]
Upon hearing about Justice Chase’s attack, President Jefferson suggested to his allies in the House of Representatives that Justice Chase should be impeached.[55] Specifically, President Jefferson wrote Joseph Nicholson, a leader in the House of Representatives, decrying Justice Chase’s comments: “Ought this seditious and official attack on the principles of our Constitution, and on the proceedings of a State, to go unpunished? And to who so pointedly as yourself will the public look for the necessary measure?”[56]
Consequently, the House passed eight articles of impeachment against Justice Chase.[57] In addition to the articles related to his statements to the Baltimore grand jury, there were two other topics within these articles. The first article concerned how Justice Chase presided over the treason trial of John Fries in Philadelphia in April 1800.[58] Four additional articles concern Justice Chase’s presiding over the trial of James Callender in Richmond in June 1800 for violating the Sedition Act.[59]
On January 3, 1805, the Senate began its impeachment trial with Vice-President Aaron Burr presiding.[60] On February 26, 1805, the Senators heard closing arguments, with the vote of each of the articles of impeachment set for three days later.[61]Although the Democratic-Republicans had over two-thirds of the thirty-four sitting Senators, they failed to obtain a conviction on any of the eight articles of impeachment.[62] The best they could manage was nineteen votes for impeachment on the article concerning Justice Chase’s comments to the Baltimore grand jury regarding the repeal of the Judiciary Act.[63] Upon hearing of the acquittal, President Jefferson quipped that “impeachment will not be tried again”[64] for Supreme Court justices, because the acquittal “effectively insulated the judiciary from further congressional attacks based on disapproval of judges’ opinions.”[65]
IV. Prosecuting Justice Kavanaugh in Federal Court
With the historical context of Justice Chase’s Senate impeachment trial, impeaching Justice Kavanaugh is not a viable option for removing him from the Supreme Court. It might be that the Democrats could muster the votes for impeachment in the House of Representatives, but that would not be a foregone conclusion. Regardless, there is no chance that the Senate, given the political divisions, would vote to convict Justice Kavanaugh. Even if the Democrats held a majority within the Senate, they would not have two-thirds of the seats.
Fortunately, there is another option for Democrats seeking to remove Justice Kavanaugh from the Supreme Court. However, that avenue does not go through Congress, but through the White House. First, presumptive Democratic nominee Joe Biden would have to defeat President Trump in November to switch the White House to Democratic control. Then newly-elected President Biden would have to nominate a new United States Attorney for the District of Columbia.[66] This person would in turn have to launch an investigation into potential charges against Justice Kavanaugh related to the investigation regarding his nomination and his testimony in support of his nomination.
It should be clear that for those individuals who believe that Justice Kavanaugh lacks the judicial temperament to be on the Supreme Court based on his partisan outbursts during his testimony before the Senate Judiciary Committee, such conduct fails to establish a federal crime. Instead, any such prosecutions likely would have to be framed in the context of falsehoods made during testimony under oath or during statements made to the FBI during the official investigation for his nomination.
Specifically, there are two federal statutes that may provide a basis for prosecution: the perjury statute and the false statements statute. There are several topics that may provide a basis for prosecution pursuant to these statutes: Justice Kavanaugh’s testimony and statements regarding the allegations by Dr. Ford, the allegations by Deborah Ramirez, the nature of comments about Renate Schroeder Dolphin, and the nature of Justice Kavanaugh’s alcohol consumption.
A. Federal Criminal Statutes Providing Potential Charges
The federal perjury statute provides two ways that one could be found guilty of perjury. The first approach essentially involves lying under oath to a court or official:
having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true.[67]
The second approach concerns an individual who makes a false statement or declaration: “in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code, willfully subscribes as true any material matter which he does not believe to be true.”[68] Anyone convicted of perjury may be imprisoned for up to five years.[69] Moreover, the statute of limitations for perjury is five years.[70]
In addition to perjury, a charge for making a false statement is also possible. Specifically, federal law criminalizes when anyone makes false statements to an FBI agent conducting an investigation:
in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry. . . .[71]
Such false statements would include those made during the course of an investigation for a federal judicial position. In order to prove a false statement, the government must establish that the statement was untrue when the defendant made it and that the defendant knew it was untrue. “Materiality” is an element for a § 1001 charge. To be “material,” a statement must “[have] a natural tendency to influence, or [be] capable of influencing, the decision of the decisionmaking body to which it was addressed.”[72] Anyone convicted of making such a false statement may be imprisoned for up to five years.[73] As with perjury, the statute of limitations for making a false statement is five years.[74]
B. There are Four Potential Sources for Criminal Prosecution
1. Dr. Christine Blasey Ford’s Allegations
On September 27, 2018, before the Senate Judiciary Committee, Dr. Ford testified in her opening statement, explaining “I am here because I believe it is my civic duty to tell you what happened to me while Brett Kavanaugh and I were in high school.”[75]She further clarified that at a summer party, she was pushed into a bedroom where Justice Kavanaugh jumped on top of her.[76]She described the assault in horrifying terms:
He began running his hands over my body and grinding his hips into me. I yelled, hoping someone downstairs might hear me, and tried to get away from him, but his weight was heavy. Brett groped me and tried to take off my clothes. He had a hard time because he was so drunk, and because I was wearing a one-piece bathing suit under my clothes. I believed he was going to rape me. I tried to yell for help. When I did, Brett put his hand over my mouth to stop me from screaming. This was what terrified me the most, and has had the most lasting impact on my life. It was hard for me to breathe, and I thought that Brett was accidentally going to kill me. Both Brett and Mark were drunkenly laughing during the attack. They both seemed to be having a good time. Mark was urging Brett on, although at times he told Brett to stop.[77]
Justice Kavanaugh explicitly rejected Dr. Ford’s allegation in his opening statement: “Dr. Ford publicly accused me of committing a serious wrong more than 36 years ago when we were both in high school. I denied the allegation immediately, unequivocally, and categorically.”[78] Moreover, in response to Louisiana Senator John Kennedy, Justice Kavanaugh swore he was one hundred percent certain that Dr. Ford’s allegations were untrue.[79]
Both of these statements were under oath. Given that they are diametrically inapposite, there is a likelihood that one of them committed perjury. The FBI did not interview either Dr. Ford or Justice Kavanaugh.[80]
However, other potential witnesses regarding Dr. Ford’s allegation exist. For example, Dr. Ford claimed that she attended the party with her friend Leland Ingram Keyser, but Keyser denied knowing Justice Kavanaugh or recalling any attendance of such a party.[81] Moreover, Dr. Ford recalled Mark Judge and P.J. Smyth as being among the party’s attendees.[82] The FBI interviewed them along with others.[83]
2. Deborah Ramirez’s Allegations
A few days before the September 27 testimony, Deborah Ramirez, a former Yale College classmate, made allegations about sexual improprieties by Justice Kavanaugh. During a first-year party in Lawrence Hall, Ms. Ramirez engaged in a drinking game leading to her inebriation.[84]A third male student then exposed himself to her. ‘I remember a penis being in front of my face,’ she said. ‘I knew that’s not what I wanted, even in that state of mind.’ She recalled remarking, ‘That’s not a real penis,’ and the other students laughing at her confusion and taunting her, one encouraging her to ‘kiss it.’ She said that she pushed the person away, touching it in the process . . . She remembers Kavanaugh standing to her right and laughing, pulling up his pants. ‘Brett was laughing,’ she said. ‘I can still see his face, and his hips coming forward, like when you pull up your pants.’ She recalled another male student shouting about the incident. ‘Somebody yelled down the hall, “Brett Kavanaugh just put his penis in Debbie’s face,” she said. ‘It was his full name. I don’t think it was just “Brett.” And I remember hearing and being mortified that this was out there.’[85]
Ms. Ramirez made a statement to the FBI regarding her allegation.[86] After the FBI agents finished her interview, one of the FBI agents told her they found her credible.[87]
Although the FBI did not interview Justice Kavanaugh about Ms. Ramirez’s allegation, in response to Senator Kennedy’s questioning, Justice Kavanaugh swore that he was one hundred percent certain that Ms. Ramirez’s allegation was untrue.[88]There are some individuals from Yale College who affirm Ms. Ramirez’s version of events. For example, Kenneth Appold, who was Justice Kavanaugh’s suitemate that year, reported he first heard about the alleged incident involving Kavanaugh and Ramirez either the night it occurred or a day or two later. Appold said that “he was ‘one-hundred-per-cent certain’ that he was told that Kavanaugh was the male student who exposed himself to Ramirez.”[89] Mr. Appold indicated he could corroborate Ms. Ramirez’s allegation because her version of events was similar to his recollection of the story even though he never talked to her about it.[90] Moreover, he told his graduate school roommate about the incident a few years later, which that individual corroborated as well.[91] Finally, he attempted to contact the FBI to provide this information, but was unable to get any response to his messages.[92]
In response to a question from Utah Senator Orrin Hatch, Justice Kavanaugh testified that he first heard of Ms. Ramirez’s allegations from a New Yorker article published on September 23, 2018.[93] However, Kerry Berchem, a Yale classmate of both Ms. Ramirez and Justice Kavanaugh, attempted to inform the FBI during its supplemental investigation that she had text messages she thought might indicate that Justice Kavanaugh and other Yale College friends may be attempting to manage any allegation by Ms. Ramirez two months before the Ramirez allegations came to light.[94]
Moreover, there was a second similar allegation that Justice Kavanaugh exposed his penis to another woman, Tracy Harmon Joyce, while at Yale College and forced her to touch it.[95] Max Stier, who also attended Yale College at this time, reported that he saw Kavanaugh at a different party exposing himself and causing a female student to touch his penis.[96] The FBI did not investigate Mr. Stier’s claims during the course of its supplemental investigation even though this allegation was similar to the one raised by Ms. Ramirez.[97]
3. Justice Kavanaugh’s Comments About Renate Schroeder Dolphin
In addition to the sexual assault allegations, there were assertions that Justice Kavanaugh made sexually inappropriate comments about a female student, Renate Schroeder Dolphin, who attended his high school’s sister school.[98] Specifically, in his high school yearbook, he and his classmates used her name as a code for claiming sexual episodes with her.[99] A high school classmate provided the Senate Judiciary Committee with a sworn statement indicating “that he heard Kavanaugh ‘talk about Renate many times,’ and that ‘the impression I formed at the time from listening to these conversations where Brett Kavanaugh was present was that Renate was the girl that everyone passed around for sex.’”[100] This same person reported “that ‘Brett Kavanaugh had made up a rhyme using the REE NATE pronunciation of Renate’s name’ and sang it in the hallways on the way to class. He recalled the rhyme going, ‘REE NATE, REE NATE, if you want a date, can’t get one until late, and you wanna get laid, you can make it with REE NATE.’” Although he acknowledged that he may not have remembered the song word for word, he confirmed his recollection captured the gist of it, noting that the song “left an indelible mark in [his] memory.”[101]
Before the Senate Judiciary Committee, Justice Kavanaugh denied that the yearbook references concerned sexual activity (real or imagined) with this female student. Instead, he explained that “one of our good female friends, who we would admire and went to dances with had her name used on the yearbook page with the term alumnus. That yearbook reference was clumsily intended to show affection and that she was one of us. But in this circus, the media has interpreted the term was related to sex. It was not related to sex.”[102] It is unclear whether Justice Kavanaugh recalled the song about this student that he allegedly sang.
4. Justice Kavanaugh’s Comments About His Alcohol Consumption
Justice Kavanaugh’s alcohol consumption became a topic of discussion during his Senate confirmation hearings. He repeatedly denied having any problems with alcohol. For example, in an exchange with Minnesota Senator Amy Klobuchar, Justice Kavanaugh denied ever blacking out from drinking too much:
Klobuchar: “You’re saying there’s never been a case where you drank so much that you didn’t remember what happened the night before or part of what happened?”
Kavanaugh: “If you’re asking about blackout, I don’t know—have you?”
Klobuchar: “Could you answer the question, judge? . . . So, that’s not what happened, is that your answer?”
Kavanaugh: “Yeah, and I’m curious if you have.”
Klobuchar: “I have no drinking problem, judge.”
Kavanaugh: “Nor do I.”[103]
Instead, Justice Kavanaugh simply asserted he likes beer and drinks beer: “Almost everyone did. Sometimes I had too many beers. Sometimes others did. I liked beer. I still like beer. But I did not drink beer to the point of blacking out, and I never sexually assaulted anyone.”[104]
There are people who knew Justice Kavanaugh during those years who challenge his characterization of his relationship with alcohol. For example, Charles Ludington, a Yale College classmate, indicated that he witnessed Justice Kavanaugh “slurring his words and staggering after excessive alcohol consumption while at Yale.”[105] He further explained that “‘I can unequivocally say that in denying the possibility that he ever blacked out from drinking, and in downplaying the degree and frequency of his drinking, Brett has not told the truth.’”[106]
Liz Swisher reported that she drank often with Justice Kavanaugh at Yale College.[107] While she indicated that she never saw him act in a sexually aggressive manner towards women, she said he was a “sloppy drunk” who did beer bongs and played drinking games.[108] As she explained, “There’s no problem with drinking beer in college. The problem is lying about it.”[109]She questioned what else he would be willing to lie about under oath, if he was willing to lie about his drinking habits under oath.[110] Mr. Ludington echoed these sentiments regarding Justice Kavanaugh’s college drinking habits being immaterial, and explained that the false statements under oath were worrisome: “If he lied about his past actions on national television, and more especially while speaking under oath in front of the United States Senate, I believe those lies should have consequences.”[111]
There were other allegations of problems that suggest Justice Kavanaugh engaged in excessive drinking in a manner inconsistent with his Senate testimony. For example, “he once got so drunk that he tried to break into the back of a friend’s pickup truck and subsequently refused to cover the cost of the damage.”[112] Similarly, Justice Kavanaugh allegedly participated in causing a bar fight.[113]
V. Conclusion
This Article does not advocate for Justice Kavanaugh to be charged with either perjury or making a false statement in violation of federal criminal law, but instead posits that such charges may be available. Instead, the Article first notes that any talk of impeachment is unproductive in the current political climate. Even if a Democratically-controlled House of Representatives were to impeach him, there is no reason to believe that two-thirds of the Senate would vote to convict him of any charges.
On the other hand, a conviction by a jury within the District of Columbia seems more feasible. Just as impeachment has a significant political aspect, any prosecution of Justice Kavanaugh would also have a political aspect. Democrats comprise over seventy-five percent of registered voters while Republicans account for less than six percent in the District of Columbia.[114] In other words, any newly-appointed United States Attorney might start with a distinct advantage from the political perspective. As has been seen in many respects across the country, people are very politically divided. Justice Kavanaugh has been described as being a conservative Republican. Many people viewed his remarks in his statements as politically inflammatory. Putting aside the evidentiary case that the government might develop with a proper investigation, there may be political biases among some jurors.
Any criminal prosecution of Justice Kavanaugh would require a robust investigation by the FBI, where they would interview many more witnesses than during the supplemental investigation ordered by President Trump after the September 27, 2018 hearing before the Senate Judiciary Committee. Democratic Senators characterized the supplemental FBI report as incomplete and bogus.[115] Further demonstrating the partisan nature of the confirmation and echoing the nature of any Senate impeachment trial, the Republican Senators largely viewed the FBI’s report as acceptable.[116]
In the end, a jury would decide Justice Kavanaugh’s fate in a federal prosecution. Interestingly, the strongest case for perjury or false statement concern his comments about his history with alcohol. There are numerous potential witnesses from both his years in high school and college who provide accounts vastly different than Justice Kavanaugh does. Similarly, his comments about Renate Schroeder ring hollow in light of the boorish behavior of his classmates and the statements in his high school yearbook. Neither of these matters likely would have provided a basis for preventing his confirmation to the Supreme Court.
The allegations of sexual assault, however, would likely have prevented Justice Kavanaugh from being confirmed. The allegation that played the central role in the September 27 hearing is the one that likely would be hardest for prosecutors to obtain a conviction. It is based on stark differences between two versions of events. There are ample reasons to believe that Dr. Ford was telling the truth, but she lacks any other eyewitnesses supporting her version of events. Instead, any corroboration would have to come from people that she subsequently told about the matter over the course time.
The allegations of assault by Ms. Ramirez provide a potentially stronger basis for prosecution. Again, there may not be any eyewitness to the event that can come forward to corroborate her allegation. However, the FBI seemingly did not interview anyone related to this allegation. Moreover, there are a number of people who support Ms. Ramirez’s version based on the comments that such an assault did happen to her. Moreover, there are allegations of a similar incident involving Justice Kavanaugh that year at Yale.
In the end, it is unclear whether such a criminal prosecution would ever reach a federal criminal jury. If it does not, then it will be left for legal historians to debate these allegations and Justice Kavanaugh’s place on the Supreme Court.
* Assistant Professor of Law, University of North Texas Dallas College of Law; B.A., University of Notre Dame, J.D., Columbia University School of Law, M.I.A., Columbia University School of International and Public Affairs. From 2005 until 2013, the author served as a United States Magistrate Judge for the United States District Court for the Southern District of Texas. The author greatly appreciates the valuable insights and comments from Peter Alexander, Antony Kolenc, and Melanie Reid.
[1]. Ariane de Vogue, Justice Anthony Kennedy to Retire from Supreme Court, CNN (June 27, 2018, 5:30 PM), https://www.cnn.com/2018/06/27/politics/anthony-kennedy-retires/index.html [https://perma.cc/5NGS-6W75].
[2]. Mark Landler & Maggie Haberman, Brett Kavanaugh Is Trump’s Pick for Supreme Court, N.Y. Times (July 9, 2018), https://www.nytimes.com/2018/07/09/us/politics/brett-kavanaugh-supreme-court.html [https://perma.cc/K78D-8WTL].
[3]. Tucker Higgins & Emma Newburger, Democrats Attack As Supreme Court Nominee Brett Kavanaugh’s Confirmation Hearings Get Off to Chaotic Start, CNBC (Sept. 4, 2018, 6:07 PM), https://www.cnbc.com/2018/09/04/brett-kavanaugh-supreme-court-hearings-have-raucous-start.html [https://perma.cc/EY8G-JGTV].
[4]. Seung Min Kim, Ann E. Marimow, Robert Barnes & Elise Viebeck, Supreme Court nominee Brett Kavanaugh Won’t Commit to Removing Himself from Cases Directly Affecting Trump, Wash. Post (Sept. 5, 2018, 7:37 PM), https://www.washingtonpost.com/powerpost/kavanaugh-hearing-trumps-supreme-court-nominee-faces-senate-grilling/2018/09/05/97fda1ac-b081-11e8-9a6a-565d92a3585d_story.html [https://perma.cc/VQE9-8TCA].
[5]. Brian Naylor, Kavanaugh Hearings, Day 3: Booker Has His ‘Spartacus Moment’; A Mulligan on Mueller, NPR (Sept. 6, 2018, 9:08 PM), https://www.npr.org/2018/09/06/645307229/kavanaugh-hearings-day-3-booker-has-his-sparticus-moment-a-mulligan-on-mueller [https://perma.cc/6S9M-L7YD].
[6]. Witnesses Testify in Final Days of Brett Kavanaugh Confirmation Hearings, CBS News (Sept. 7, 2018, 4:50 PM), https://www.cbsnews.com/news/brett-kavanaugh-confirmation-hearing-supreme-court-john-dean-live-stream-today-09-07-2018/ [https://perma.cc/8GFT-GUX5].
[7]. Trish Turner & Meghan Keneally, Christine Blasey Ford Painfully Recounts Alleged Attack by Kavanaugh: ‘I believed He Was Going to Rape Me’, ABC News (Sept. 27, 2018, 8:41 AM), https://abcnews.go.com/US/read-christine-blasey-fords-opening-statement-believed-rape/story?id=58107190 [https://perma.cc/8GFX-ASZ3].
[10]. Sheryl Gay Stolberg & Nicholas Fandos, Brett Kavanaugh and Christine Blasey Ford Duel with Tears and Fury, N.Y. Times (Sept. 27, 2018), https://www.nytimes.com/2018/09/27/us/politics/brett-kavanaugh-confirmation-hearings.html [https://perma.cc/YV8W-KA6C].
[11]. Emma Brown, California Professor, Writer of Confidential Brett Kavanaugh Letter, Speaks Out About Her Allegation of Sexual Assault, Wash. Post (Sept. 16, 2018, 7:28 PM), https://www.washingtonpost.com/investigations/california-professor-writer-of-confidential-brett-kavanaugh-letter-speaks-out-about-her-allegation-of-sexual-assault/2018/09/16/46982194-b846-11e8-94eb-3bd52dfe917b_story.html [https://perma.cc/DC69-AR9Y].
[15]. Noor Wazwaz, Scott Detrow, Tim Mak & Jessica Taylor, Trump Orders Limited FBI Investigation to Supplement Kavanaugh Background Check, NPR (Sept. 28, 2018, 7:55 AM), https://www.npr.org/2018/09/28/652486413/judiciary-committee-set-to-vote-on-kavanaugh-friday-with-eyes-on-undecided-jeff [https://perma.cc/V95N-8EPZ].
[17]. Cheyenne Haslett, Senators to Review FBI Report on Allegations Against Brett Kavanaugh Thursday, ABC News (Oct. 4, 2018, 3:17 AM), https://abcnews.go.com/Politics/senators-await-fbi-report/story?id=58269043 [https://perma.cc/Z3WE-WH6M].
[18]. Devan Cole, Sen. Chris Coons Says FBI’s Investigation into Kavanaugh Was a ‘Sham’, CNN (Sept. 17, 2019, 12:41 PM), https://www.cnn.com/2019/09/17/politics/chris-coons-brett-kavanaugh-fbi-investigation/index.html [https://perma.cc/8QSA-UHMH].
[19]. Sheryl Gay Stolberg, Kavanaugh Is Sworn in After Close Confirmation Vote in Senate, N.Y. Times (Oct. 6, 2018), https://www.nytimes.com/2018/10/06/us/politics/brett-kavanaugh-supreme-court.html [https://perma.cc/T3E9-FME8].
[20]. Allan Smith, ‘This Is War’: The Fight to Impeach Brett Kavanaugh Is About to Become a Defining Issue of the 2018 Elections—and Beyond, Bus. Insider (Oct. 9, 2018, 6:10 AM), https://www.businessinsider.com/impeachement-brett-kavanaugh-democrats-republicans-trump-2018-9 [https://perma.cc/J3P9-M47W].
[21]. Tess Bonn, Dershowitz: Impeaching Kavanaugh Would Be Foolish, Unconstitutional, Hill (Oct. 9, 2018), https://thehill.com/hilltv/rising/410563-dershowitz-impeaching-kavanaugh-would-be-foolish-unconstitutional [https://perma.cc/CJF6-JVMQ].
[22]. See generally Robin Pogrebin & Kate Kelly, The Education of Brett Kavanaugh: An Investigation (2019).
[23]. Daniel Politi, Elizabeth Warren Joins Harris, Castro in Calling for Kavanaugh’s Impeachment, Slate (Sept. 15, 2019, 3:24 PM), https://slate.com/news-and-politics/2019/09/elizabeth-warren-kamala-harris-julian-castro-kavanaugh-impeachment.html [https://perma.cc/B7U7-49SP].
[24]. Id.; Martin Pengelly, Trump blasts calls for impeachment of Brett Kavanaugh after new allegations, Guardian, https://www.theguardian.com/us-news/2019/sep/15/brett-kavanaugh-donald-trump-impeachment-supreme-court-justice [https://perma.cc/95CR-HX83].
[25]. Politi, supra note 23. It should be noted that several Democratic leaders rejected the notion of impeachment proceedings for Justice Kavanaugh. See Burgess Everett & Heather Caygle, ‘Get Real’: Senior Democrats Shut Down Kavanaugh Impeachment Push, Politico (Sept. 16, 2019, 7:29 PM), https://www.politico.com/story/2019/09/16/democrats-brett-kavanaugh-impeachment-calls-1499444 [https://perma.cc/5GVG-QN8L].
[26]. U.S. Const. art. I, § 2, cl. 5.
[27]. U.S. Const. art. I, § 3, cl. 6.
[28]. Id. (“[w]hen sitting for that Purpose, [Senators] shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the “Members present”).
[29]. U.S. Const. art. II, § 4; see also Joseph Isenbergh, Impeachment and Presidential Immunity from Judicial Process, 18 Yale L. & Pol’y Rev. 53, 67–71 (1999).
[30]. U.S. Const. art. III, § 1.
[31]. Impeachments of Federal Judges, Fed. Jud. Ctr., https://www.fjc.gov/history/judges/impeachments-federal-judges [https://perma.cc/XV9Q-GYEZ].
[33]. Hastings v. United States, 802 F. Supp. 490, 492–93 (D.D.C. 1992).
[34]. The Impeachment Trial of Alcee L. Hastings (1989) U.S. District Judge, Florida, U.S. Senate, https://www.senate.gov/artandhistory/history/common/briefing/Impeachment_Hastings.htm [https://perma.cc/J9DS-M6MG].
[35]. Brian L. Owsley, Due Process and the Impeachment of President Donald Trump, 2020 U. Ill. L. Rev. Online 67, 69 (2020).
[37]. Nixon v. United States, 506 U.S. 224, 226–28 (1993).
[38]. Id. at 237–38 (holding that the Senate had the sole discretion to select its impeachment procedures in trying a federal judge); see also Philip C. Bobbitt, Impeachment: A Handbook, 128 Yale L.J. F. 515, 536–37 (2018) (scholar Charles Black’s argument that the Senate had the sole power to try all impeachments meant that its “power to try impeachments included the nonreviewable discretion to determine how to conduct its trials.”).
[39]. Hastings v. United States, 988 F.2d 1280 (D.C. Cir. Mar. 2, 1993) (unpublished).
[40]. Howard M. Wasserman, Structural Principles and Presidential Succession, 90 Ky. L.J. 345, 374–75 (2001-2002).
[41]. Norman R. Williams, Why the National Popular Vote Compact Is Unconstitutional, 2012 BYU L. Rev. 1523, 1568 (2012).
[42]. John Ferling, Thomas Jefferson, Aaron Burr and the Election of 1800, Smithsonian Mag. (Nov. 1, 2004), https://www.smithsonianmag.com/history/thomas-jefferson-aaron-burr-and-the-election-of-1800-131082359/ [https://perma.cc/8VR5-FDHH]; see also Hamilton: An American Musical (2015).
[43]. Peter Irons, A People’s History of the Supreme Court 103–04 (Penguin Books, 1999).
[44]. Act of Feb. 13, 1801, ch. 4, 2 Stat. 89 (1801); Irons, supra note 43, at 104.
[45]. 2 Stat. 89; William H. Rehnquist, Grand Inquests: The Historic Impeachments of Justice Samuel Chase and President Andrew Johnson 50 (William Morrow and Company, Inc. 1992).
[47]. Saikrishna Bangalore Prakash, The Appointment and Removal of William J. Marbury and When an Office Vests, 89 Notre Dame L. Rev. 199, 206 (2013).
[48]. Edward A. Hartnett, Recess Appointments of Article III Judges: Three Constitutional Questions, 26 Cardozo L. Rev. 377, 397 (2005).
[49]. Prakash, supra note 47, at 206–07; Hartnett, supra note 48, at 397.
[50]. Irons, supra note 43, at 104.
[51]. Fed. Jud. Ctr., Approaches to Federal Judicial History (1st ed. 2020), https://www.fjc.gov/sites/default/files/materials/50/Approaches%20to%20Federal%20Judicial%20History.pdf [https://perma.cc/25JZ-TXND].
[52]. See Irons, supra note 43, at 104.
[53]. See generally Marbury v. Madison, 5 U.S. 137, 153–54 (1803).
[54]. Rehnquist, supra note 45, at 52; Irons, supra note 43, at 108.
[55]. Rehnquist, supra note 45, at 53; Irons, supra note 43, at 108.
[56]. Rehnquist, supra note 45, at 22.
[59]. David A. Pepper, Nullifying History: Modern-Day Misuse of the Right to Decide the Law, 50 Case W. Rsrv. L. Rev. 599, 630 (2000).
[60]. See Rehnquist, supra note 45, at 18 (at the time of this trial, Burr’s political career was waning as President Jefferson had not sought him to continue at Vice-President in the 1804 election, and New York and New Jersey had issued arrest warrants for his role in the duel that killed Alexander Hamilton).
[64]. Irons, supra note 43, at 110.
[65]. Senate Prepares for Impeachment Trial, U.S. Senate, https://www.senate.gov/artandhistory/history/minute/Senate_Tries_Justice.htm [https://perma.cc/G4Y2-B5EQ].
[66]. See generally 28 U.S.C. § 541 (2020).
[67]. 18 U.S.C. § 1621(1) (2020).
[70]. 18 U.S.C. § 3282(a) (2020) (“[e]xcept as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.”).
[71]. 18 U.S.C. § 1001(a) (2020).
[72]. Kungys v. United States, 485 U.S. 759, 770 (1988); see also United States v. Gaudin, 28 F.3d 943, 948 (9th Cir. 1994) (discussing Kungys).
[75]. Full Transcript: Christine Blasey Ford’s Opening Statement to the Senate Judiciary Committee, Politico (Sept. 26, 2018, 6:22 PM), https://www.politico.com/story/2018/09/26/christine-blasey-ford-opening-statement-senate-845080 [https://perma.cc/NU5M-73CH].
[78]. Prepared Written Testimony of Judge Brett M. Kavanaugh Nomination Hearing to Serve as an Associate Justice of the Supreme Court September 27, 2018 (submitted Sept. 26, 2018), https://www.judiciary.senate.gov/imo/media/doc/09-27-18%20Kavanaugh%20Testimony.pdf [https://perma.cc/FQ8X-52B2].
[79]. Pogrebin & Kelly, supra note 22, at 201.
[80]. Abigail Abrams, Here Are All the People We Know the FBI Talked to for the Kavanaugh Report, Time (Oct. 4, 2018, 6:50 PM), https://time.com/5415845/kavanaugh-fbi-investigation-witnesses/ [https://perma.cc/VP8H-GGJP]; Pogrebin & Kelly, supra note 22, at 247.
[81]. Pogrebin & Kelly, supra note 22, at 261.
[82]. Full Transcript, supra note 75.
[84]. William Cummings, What We Know About Deborah Ramirez, the Second Woman to Accuse Kavanaugh of Sexual Assault, USA Today (Sept. 24, 2018, 2:38 PM), https://www.usatoday.com/story/news/politics/2018/09/24/brett-kavanaugh-deborah-ramirez-what-we-know/1408056002/ [https://perma.cc/CG4T-GUGM].
[85]. Ronan Farrow & Jane Mayer, Senate Democrats Investigate a New Allegation of Sexual Misconduct, from Brett Kavanaugh’s College Years, New Yorker (Sept. 23, 2018), https://www.newyorker.com
/news/news-desk/senate-democrats-investigate-a-new-allegation-of-sexual-misconduct-from-the-supreme-court-nominee-brett-kavanaughs-college-years-deborah-ramirez[https://perma.cc/2KRR-NUQ2].
[87]. Pogrebin & Kelly, supra note 22, at 240.
[89]. Jane Mayer & Ronan Farrow, The F.B.I. Probe Ignored Testimonies from Former Classmates of Kavanaugh, New Yorker (Oct. 4, 2018), https://www.newyorker.com/news/news-desk/will-the-fbi-ignore-testimonies-from-kavanaughs-former-classmates [https://perma.cc/N3MR-KB3B].
[92]. Pogrebin & Kelly, supra note 22, at 243.
[94]. See Heidi Przybyla & Leigh Ann Caldwell, Text Messages Suggest Kavanaugh Wanted to Refute Accuser’s Claim Before It Became Public, NBC News (Oct. 2, 2018, 4:31 AM), https://www.nbcnews.com/politics/supreme-court/mutual-friend-ramirez-kavanaugh-anxious-come-forward-evidence-n915566 [https://perma.cc/FVK9-4T34]; Pogrebin & Kelly, supra note 22, at 240.
[95]. Pogrebin & Kelly, supra note 22, at 230.
[96]. Michelle Mark, A Former Classmate of Brett Kavanaugh Reportedly Tipped Off the FBI and Senators to Another Allegation of Sexual Misconduct, Bus. Insider(Sept. 14, 2019, 6:46 PM), https://www.businessinsider.com/brett-kavanaugh-new-sexual-misconduct-allegation-classmate-max-stier-2019-9 [https://perma.cc/7P8H-R2FG]; Pogrebin & Kelly, supra note 22, at 230.
[98]. See Kate Kelly & David Enrich, Kavanaugh’s Yearbook Page Is ‘Horrible, Hurtful’ to a Woman It Named, N.Y. Times (Sept. 24, 2018), https://www.nytimes.com/2018/09/24/business/brett-kavanaugh-yearbook-renate.html [https://perma.cc/MR5R-NDPJ].
[99]. John Walsh, ‘I Pray Their Daughters Are Never Treated This Way’: Woman Responds After Learning She Was the Subject of a Suggestive Joke on Brett Kavanaugh’s Yearbook Page, Bus. Insider (Sept. 24, 2018, 10:08 PM), https://www.businessinsider.com/woman-who-defended-kavanaugh-finds-out-she-was-the-butt-of-his-jokes-2018-9[https://perma.cc/FEP6-7PWM]; Mayer & Farrow, supra note 89.
[100]. Mayer & Farrow, supra note 89.
[102]. Kavanaugh Calls His High School Yearbook a “Disaster”, CNN: Pol. (Sept. 27, 2018, 4:03 PM), https://www.cnn.com/politics/live-news/kavanaugh-ford-sexual-assault-hearing/h_b6de274becc1e3ad0231234e0cc78695 [https://perma.cc/46BM-37G8].
[103]. Megan Garber, The Pernicious Double Standards Around Brett Kavanaugh’s Drinking, Atlantic (Sept. 28, 2018) https://www.theatlantic.com/entertainment/archive/2018/09/the-impunity-of-brett-kavanaughs-binge-drinking/571435/ [https://perma.cc/R3PG-JHAK].
[104]. Tamara Keith, President Trump, Brett Kavanaugh and Beer, NPR (Oct. 2, 2018, 5:00 AM), https://www.npr.org/2018/10/02/653414359/president-trump-brett-kavanaugh-and-beer [https://perma.cc/L592-G936].
[105]. Brett Kavanaugh’s Classmate Says He Lied About Drinking, BBC (Oct. 1, 2018), https://www.bbc.com/news/world-us-canada-45710340 [https://perma.cc/58WZ-U357].
[107]. Classmate: Kavanaugh Drank Heavily, CNN: Pol., https://www.cnn.com/videos/politics/2018/09/29/liz-swisher-yale-classmate-sloppy-drunk-bts-cuomo-vpx.cnn[https://perma.cc/2MKP-GCKC].
[109]. Tara Golshan, Did Brett Kavanaugh Perjure Himself During His Confirmation Hearing?, Vox (Sept. 15, 2019, 11:40 AM), https://www.vox.com/policy-and-politics/2019/9/15/20866829
/brett-kavanaugh-perjury-confirmation-hearing-deborah-ramirez-new-allegations [https://perma.cc/56DC-YET3].
[110]. Classmate, supra note 107.
[111]. Brett Kavanaugh’s Classmate Says He Lied About Drinking, supra note 105.
[112]. John Haltiwanger & David Choi, Those Who Knew Brett Kavanagh in His Youth Have Described His Hard-Drinking Habits—But He Portrayed Himself Differently During His Senate Hearing, Bus. Insider (Sept. 27, 2018, 8:04 PM), https://www.businessinsider.com/kavanaugh-dodges-repeated-questions-about-his-drinking-habits-2018-9[https://perma.cc/MGJ5-H7UZ]; see also Pogrebin & Kelly, supra note 22, at 264–65.
[113]. See Pogrebin & Kelly, supra note 22, at 264–65.
[114]. D.C. Bd. of Elections, Monthly Report of Voter Registration Statistics (2020), https://www.dcboe.org/CMSPages/GetFile.aspx?guid=4961a99d-c8f2-4988-b3c8-4044b6067afa [https://perma.cc/V488-GC3Z].