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Was it the junior prom or just a high-school party? Was Christine Blasey Ford, who says she was the victim of Brett Kavanaugh's alleged sexual assault, 15 or 16 years old at the time? Were there four boys present during the incident, as in the notes of Blasey Ford's therapist, or two, as she says now? Did Kavanaugh's friend, Mark Judge, who strongly denies the incident, participate? Was it even Kavanaugh who participated, or perhaps someone who looked like him? Why did the alleged victim wait 35 years (or was it 36) to come forward? Why did Senator Dianne Feinstein refer the complaint to the FBI, which has no jurisdiction?
One can have complete sympathy for someone who underwent the trauma of experiencing attempted sexual assault, but the fishy timing and discrepancies of this reported incident, not to mention the request by Blasey Ford's lawyer for Judge Kavanaugh to defend himself before knowing what he is being accused of, make it hard not to ask what unprovable and undefendable allegations will the next character assassin toss out. Hard-drug use? Child abuse? How pervasive and surreal are such fact-challenged defamations going to get?
The answer to all these questions is: I don't know, I can't know, and I don't care. Nor do I care what Dianne Feinstein did at her junior prom, nor what Kamala Harris did at hers, although I suspect she spent the evening looking for people to interrupt.
Many people believe that memory is like a DVD or videotape -- it remains the same and can be accessed whenever we please. But memory is more like a computer document -- it can be altered every time we access it, and it may degrade over time.
My wife is a clinical and forensic psychologist. When she was studying for her Ph.D., she was assigned a classic textbook: Eyewitness Testimony by Elizabeth Loftus. The uncertainties of eyewitness reports are detailed. The professor teaching the course, who had testified as an expert witness in dozens of criminal trials, gave this advice to his students if they were to do the same: Get the check first.
According to Thomas Albright, director of the Vision Center Laboratory at the Salk Institute for Biological Studies:
"Human visual perception and memory are changeable, the ability to recognize individuals is imperfect, and policies governing law enforcement procedures are not standard -- and any of these limitations can produce mistaken identifications with serious consequences.,"
If I am questioned by the police repeatedly and give more-or-less the same story, I am probably telling the truth. But if I give exactly the same story each time, it may be a lie I am sticking to. If an associate and I are questioned, and we give more-or-less the same story, it is probably the truth. But if we give exactly the same story, it may be a tale we cooked up. Minor discrepancies are, if anything, signs of truth, not falsehood. Apparently, federal agents and prosecutors do not know it. Why?
As Prof. Alan Dershowitz explains, if I tell a federal agent something, and another person tells him something different, one of us can be charged with the felony of making false statements -- the person the prosecutor dislikes. This is true even if (1) no third person verifies the story, (2) no independent evidence corroborates the story, (3) there is no proof of intent to deceive, (4) there is no provable underlying crime, (5) the statement was not made under oath, and (6) no Miranda warning was given.
They tell us, "If you see something, say something." But their actions teach us, "Keep your mouth shut, and ask for a lawyer." If there is a more destructive lesson to teach in the era of international terrorism, I have yet to hear it.
If you doubt this, ask Lewis "Scooter" Libby, Vice President Dick Cheney's chief of staff. The special counsel tried to find evidence that Cheney illegally outed an undercover CIA agent. But in fact, the agent was no longer undercover, and she had already been outed by someone else. Nevertheless, Libby was questioned for many hours, over days. At some point he contradicted himself, or contradicted media personality Tim Russert. As reported in the Wall Street Journal by Peter Berkowitz:
"Having failed to find any underlying crime, Mr. Fitzgerald [the special prosecutor] nonetheless pressed on for someone to prosecute, eventually focusing on Mr. Libby, whose trial became a contest of recollections. The excruciatingly inconsequential question on which his conviction turned was whether, as Mr. Libby recalled, he was surprised to hear NBC's "Meet the Press" host Tim Russert ask him about Ms. Plame in a phone call on July 10 or 11, 2003.... Tim Russert's memory changed dramatically between his initial FBI interview and Mr. Fitzgerald's questioning of him....As special counsel, he [Mr. Fitzgerald] placed his quest for a conviction above the search for truth and the pursuit of justice."
Libby, who was subsequently convicted of making false statements, was eventually pardoned by President Donald J. Trump.
Or ask Lt. Gen. Michael Flynn, former National Security Advisor to President Trump. Flynn was told that FBI agents wished to see him. He was not told it was an official interview, not just a meeting. He was asked about conversations with the Russian ambassador. The FBI already knew what was said -- they had tapped the phone line, possibly illegally.
But Flynn was not told that, either. How many people know that lying to any federal agent is a crime, even if the false statement is not made under oath? So why did they ask Flynn, if not to entrap him?
Flynn's account of the conversation differed from the transcript of the tapes, so he was charged with making false statements. He had been awarded many decorations over 33 years of service to his nation. His real reward? A felony conviction.
Did Flynn lie, or merely fail to remember? And if he did lie, was it out of malice, or out of ingrained habit from many years in intelligence: Tell only those with a need to know. No matter, his statements were incorrect. To save his family from bankruptcy from legal expenses, and to save his son from similar charges, he pled guilty.
Or ask the family of the late Senator Ted Stevens. According to a report by Congressman Louie Gohmert:
"That U.S. Senator [Ted Stevens] was not only completely innocent of the manufactured case against him, he was an honest and honorable man. Under Director [Robert] Mueller's overriding supervision, the wrongdoer who helped manufacture the case stayed on and the whistleblower was punished."
How does this differ from extracting confessions by torture? True, we no longer have Torquemada using the rack ‒ we have Mueller torqueing the legal system. But is the result any better, either factually or morally? Both the Inquisition and the Nazis extracted confessions by threatening family members. The Nazis called this Sippenhaft. We should call it criminalizing political differences and Stalinizing democracy. As Lavrentiy Beria, head of the KGB under Stalin, reportedly said, "Show me the man and I'll find you the crime."
The Bible teaches us not to go around spreading slander. Or bearing false witness. It would be good if we heeded these lessons. Otherwise it may soon be we who are prosecuted, and our character maligned.
Back where I come from, officials investigate crimes that can be named and that have occurred; they do not go around trying to manufacture them. Back where I come from, officials investigate crimes to discover who committed them; they do not investigate people to see if they can come up with one.
In the unlikely event the Feds come calling: Give your name, then repeat "lawyer" interminably, perhaps to music. If you are lucky, maybe they will pass it off as early senility.
I come from America. It is a nice place to visit, but it is a really great place to live. One day I hope to live there again. A good way to make that day come sooner is to end the government's framing people, and presumptions of guilt. Ending politically motivated prosecutions, criminal conspiracies to overthrow a duly elected president, and criminal abuse of power might also help.
Dr. David C. Stolinsky, a retired physician, is based in the US.
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