Suing for “Liable”: An Aristotelian Analysis

trial of Oscar Wilde

The New York Times has come up with spicy new stuff on Brett Kavanaugh’s penis and its experiences at Yale. In response, President Shit for Brains has urged Justice Kavanaugh to sue for “liable.”

I assume that Justice Kavanaugh will not in fact bring an action for defamation. Even if he is innocent, the suit would probably be dismissed under the constitutional rule announced in New York Times v. Sullivan. And, besides that, he’s probably guilty. As Oscar Wilde found out, if you are in fact guilty, it’s very unwise to bring an action for defamation.

But let us, nevertheless, perform a little thought experiment about the Trump tweet.

By Aristotelian logic, after having been advised by the Very Stable Genius to seek a legal remedy, Justice Kavanaugh either

  • WILL NOT accept the advice, or
  • WILL accept the advice.

If Justice Kavanaugh does not take the advice, then the logical effect of Trump’s tweets will be to cause Trump followers to doubt Kavanaugh’s innocence.

But if Justice Kavanaugh does take the advice, then he bears some risk that a court might allow the case to proceed, despite the Sullivan rule, in which event all the actors in penisgate, including himself, and all the witnesses, will have to testify. Which, in turn, would give the Democrats a golden opportunity to try to impeach him.

Given all the above, I think we progressives may, on this one occasion, celebrate Trump’s advice and urge Justice Kavanaugh to seek legal redress, immediately if not sooner.

In short, Justice Kavanaugh, man up.


There Seems to be a Common Thread Running Through This

Jia Tolentino, After the Kavanaugh Allegations, Republicans Offer a Shocking Defense: Sexual Assault Isn’t a Big Deal

Amanda Marcotte, How Trump and other abusive men get away with it: Many Americans will overlook sexual assault

Max Boot, Epstein is in jail. But Trump continues to make a mockery of justice.

Jacob Soboroff and Julia Ainsley, Migrant kids in overcrowded Arizona border station allege sex assault, retaliation from U.S. agents

What if Someone Just Ignores a Subpoena?


Last night Dr. Aardvark and I were sitting in connubial contentment watching the PBS Evening News when she asked, “What happens if someone just ignores a subpoena?” I am afraid that my top-of-the-head answer was not entirely complete or accurate.

These two posts provide lots of helpful insights into the question:

Philip Bump, How the Trump-Congress subpoena fight is likely to play out

Martin Longman, Congress Needs to Lock Up Non-Complying Witnesses

Pollyanna Speaks Again

The flavor of the day is gloom and doom over Trump’s ability just to stonewall and “run out the clock.” But I have talked this situation this over with my daughter, Polyanna Aardvark, and she has some helpful thoughts.

First, by signaling that he will oppose any and all subpoenas, Trump has weakened his ability to advance any plausible argument he may have that any particular subpoena suffers from some legal defect.

Second, stonewalling doesn’t make you look “strong.” It makes you look guilty.

The strategy will appeal to those who don’t care whether or not Trump has done this or that execrable act. And there are many such people. But, to those who were unsure, but might be inclined to give Trump the benefit of the doubt as to his wrongdoing—and there are lots of those folks, too—obstruction will not accrue to his advantage.

Third, Pollyanna’s sense is that the situation will be very strongly influenced by what Don McGahn decides to do, or not to do.

McGahn, the former White House Counsel, current six- or seven-figure Jones Day partner, and Mr. Pack-the-courts-with-rightwingers par excellence, sang like a canary to the Special Counsel. Any arguable executive privilege has long since been waived with respect to the topics about which he would testify to Congress. Any arguable attorney-client privilege, ditto.

Jones Day partners, upon receipt of a proper subpoena, do not tell the entity that issued the proper subpoena to go take a flying fuck. For one thing, if they did take that course of action, then the D.C. Bar Association would not take kindly to it.

Trump has already “punished” Jones Day by taking business away from it. He doesn’t really have a hold on McGahn or on Jones Day.

Pollyanna thinks it’s likely that McGahn will testify in public, reprising the role of John Dean—and of Martin Sheen playing John Deen in the movie.

She also thinks that Brett Kavanaugh, who owes his seat on the Court to McGahn, will sit up and take notice.

Finally, she thinks that, in the aftermath of the McGhan testimony, things are likely to really go pear shaped for the Trumpster.

I told Pollyanna that we are getting a little ahead of ourselves, but she might well be right.

In the immortal words of President Eisenhower, “The future lies ahead.”

Brett Kavanaugh and Bart O’Kavanaugh

The always indispensable Vasari has called my attention to the video above.

Three other things.

A Scientific Survey

First, I have conducted a scientific survey of myself and three of my septuagenarian male friends, and all of us managed to get through high school with raping anyone or attempting to do so. I note, however, that the scope of my scientific poll did not include detailed questioning about our respective internet search histories.

Boys Will be Boys

I assume those who espouse the boys-will-be-boys defense would be happy to apply the same standard to a 17-year old illegal immigrant from Haiti who tried to rape their granddaughter.

Death Penalty Standards

Third, as my old friend Clarence Darrow noted in a conversation yesterday, the future Justice Kavanaugh will likely join his conservative colleagues in believing it’s OK to execute people for what they did at age 17.


Will She? Won’t She?

K Yearbook

Under pressure, Republicans invited Professor Ford to testify this coming Monday. Yesterday, through her lawyer, she responded that an FBI investigation must precede her testimony.

Why did she give that response?

Two Alternative, but not Mutually Exclusive, Explanations

Explanation one: she is reluctant to testify in public and has put forward the demand for an FBI investigation as a flimsy excuse to let this cup pass from her lips. (Mika and Morning Joe are persuaded this is the real reason.)

Explanation two:  She thinks that a full investigation might provide corroborating evidence for her account.

As I said, as a matter of logic, it’s possible that both explanations might be valid.

I don’t know which is the true reason for the Professor’s reluctance to testify, so let’s focus instead on some things we can be more certain about.

What Do Republican Senators Want?

Do they want, (1) to reach a full and considered judgment about what happened at the party or (2) do they want to do the minimum necessary to say they “gave her a hearing”?

This question is not challenging, so let’s pose another, somewhat more interesting inquiry.

What Would You Do If You Actually Wanted to Get to the Bottom of the Matter–Not Just Try to Be Seen to be Fair

Put on your thinking caps, everybody. There were three people in the back room at the party. What you would want to do is find the witness, Mr. Mark Judge, and put him in a position where he has to testify to his recollection under penalty of perjury or violation of 18 U.S.C. Section 1001.*

That’s what you would do first, if you were actually interested in learning as much as you could about what really happened

* Section 1001 is the law that makes it a crime for you to lie to the government, but not for the government to lie to you. It provides in relevant part,

[W}hoever, 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;

shall be fined under this title, imprisoned not more than 5 years …

The Worst Thing We Did as a Teenager

bad behavior

I agree with Kavanaugh’s defenders who say that none of us deserve to be defined by the worst thing we did as teenagers. But none of us are entitled to a Supreme Court seat, either.

Ezra Klein

Republicans scrambling to respond to Christine Ford’s detailed sexual assault allegations against their Supreme Court nominee quickly formulated a response: Offer to let Ford testify. Then, when she doesn’t have the guts to do it, declare the case settled. “This gambit basically bets that she will decline,” reports Axios this morning, “and Republicans can then say that they tried to investigate further.”

Also this morning, Ford’s lawyer tells CNN she is willing to testify publicly before the Senate. Okay, she has the guts. On to plan B.

Jonathan Chait

So here was Kavanaugh—who spent his early thirties as a Ken Starr warrior pursuing Bill Clinton for the political and legal implications of his most intimate moral failings—now in his early fifties facing a political crisis over disturbingly vivid, passionately contested, decades-old allegations about Kavanaugh’s own possible moral failings.

Few prosecutors, it seems likely, would ever open an assault case—36 years later—on the basis of Christine Blasey Ford’s account of being pinned down on a bed by a drunken Kavanaugh, then 17, and being aggressively groped until a friend of his forcibly intervened.

But few prosecutors in the 1990s would have pursued an extensive criminal investigation over perjury into a middle-aged man’s lies about adultery if that person had not been President Clinton.

John Harris in Politico, answering the question, Why God Is Laughing at Brett Kavanaugh