My take on Kavanaugh at the moment by Josh Marshall

By Josh Marshall

Let me try to bring you up to date on a genuinely bizarre turn of events tonight which could end up being very damaging to Brett Kavanaugh’s nominatin to the Supreme Court.

As I noted below, around 6 pm this evening Ed Whelan, a key player in DC’s conservative judicial establishment, posted a lengthy twitter thread in which he made a highly conjectural argument that the accusation against Brett Kavanaugh is actually a case of mistaken identification and that Prof. Blasey Ford’s alleged attacker was actually a classmate of Kavanaugh’s named Chris Garrett.

Garrett is now a middle school teacher in Georgia and had actually signed a letter which a number of Kavanaugh’s classmates sent to the Senate in July attesting to Kavanaugh’s character. Blasey Ford put out a statement tonight stating categorically that she knew both Kavanaugh and Garrett at the time and that there is no way she could have mistaken one for the other.

It’s worth stepping back and contemplating just how wild and reckless an action this was. There’s really no way for me to capture the zaniness of Whelan’s argument. You can read it here. Suffice it to say it’s far-fetched an makes the most serious of accusations based on the flimsiest of conjectures.

There are two key pieces of context that are critical to understand. Whelan didn’t just spin out some hypotheticals. He clearly pointed the finger at a man who is not a public figure in any way and argued that he was likely the one who attempted to rape Blasey Ford. At the end of his thread he drew back and said he didn’t know specifically what had happened that night … but it was clear what he meant and what he was saying. This is almost certainly libelous.

The other point is that Whelan is not some random on Twitter or an eccentric but little known activist. He is close friends with Kavanaugh and Leonard Leo, the head of the Federalist Society, the group that chooses and then organizes the confirmation strategies for these nominees. Whelan is also close to Don McGahn, the White House Counsel who is formally in charge of shepherding Kavanaugh’s nomination through the Senate. Whelan is part of the very top handful of activists who play in this space.

On its face this was a crazy stunt. But there’s more here.

Over the last few days I had been noticing Whelan’s cryptic comments that he had big news coming that would definitively exonerate Kavanaugh. He made clear this new evidence would definitively exonerate Kavanaugh. He predicted that Sen. Feinstein would literally apologize to Kavanaugh’s family for the false accusation. A number of Republican staffers and conservative legal academics had chimed in on these tweets, telling people to watch out for what Whelan had coming and certainly implying that they knew some of the details. A lot of people who are deep into this judicial confirmation process – politicos, legal academics, conservative activists – were watching this closely.

But then tonight, in response to Whelan’s tweet thread, The Washington Post published a story that without quite saying it explicitly strongly suggested that Whelan had developed his libelous theory in conjunction with the advisors spearheading Kavanaugh’s nomination. I’m going to quote from a key passage at length with my emphases added …

Amid the maneuvering, the nomination was roiled further late Thursday by incendiary tweets from a prominent Kavanaugh friend and supporter who publicly identified another high school classmate of Kavanaugh’s as Ford’s possible attacker.

Ed Whelan, a former clerk to the late justice Antonin Scalia and president of the Ethics and Public Policy Center, pointed to floor plans, online photographs and other information to suggest a location for the house party in suburban Maryland that Ford described. He also named and posted photographs of the classmate he suggested could be responsible.

Ford dismissed Whelan’s theory in a statement late Thursday: “I knew them both, and socialized with” the other classmate, Ford said, adding that she had once visited him in the hospital. “There is zero chance that I would confuse them.”

Republicans on Capitol Hill and White House officials immediately sought to distance themselves from Whelan’s claims and said they were not aware of his plans to identify the former classmate, now a middle school teacher, who could not be reached for comment and did not answer the door at his house Thursday night.

Whelan did not respond to requests for comment. He had told people around him that he had spent several days putting together the theory and thought it was more convincing than her story, according to two friends who had talked to him.

Whelan has been involved in helping to advise Kavanaugh’s confirmation effort and is close friends with both Kavanaugh and Leonard Leo, the head of the Federalist Society who has been helping to spearhead the nomination. Kavanaugh and Whelan also worked together in the Bush administration.

Kavanaugh and his allies have been privately discussing a defense that would not question whether an incident involving Ford happened, but instead would raise doubts that the attacker was Kavanaugh, according to a person familiar with the discussions.

The Post doesn’t say it in so many words. But there are several key pieces of information which tell a story. Whelan is close friends with Kavanaugh and Leo. Whelan is part of the team advising and assisting Kavanaugh through the confirmation process. We also learn that “Kavanaugh and his allies” have been working on a defense that sounds very much like the one Whelan rolled out on Twitter tonight: an explanation that both exonerates Kavanaugh but does so without attacking Blasey Ford’s good faith. ‘She was a victim. She deserves our sympathy. But it wasn’t Brett Kavanaugh. That part was a misunderstanding.’

Put these facts together and it is very, very hard to believe that Kavanaugh and his top advisors did not at least know the outlines of Whelan’s theory. If that’s true, it’s big, big trouble and shows a level of recklessness and irresponsibility that shouldn’t have Kavanaugh sitting as a judge on any court let alone the Supreme Court. Whether Kavanaugh and Leo knew just what Whelan was going to do tonight is much less clear. But again, put those facts above together and it’s a real stretch to think Whelan hadn’t at least discussed his theory with Kavanaugh’s team.

Again, put the facts together. Whelan is part of Kavanaugh’s confirmtion advisor team at the highest levels. Kavanaugh and his advisors have been working on a defense theory like the one Whelan tweeted about. Conservative political and legal circles have been buzzing about the goods Whelan was about to unload for the last couple days. Are we really supposed to believe Whelan never mentioned any of this to Kavanaugh or Leo? That this was the first they ever heard of it?

There are more details too.

I mentioned above that a number of Whelan’s ideological comrades had been playing up his hints of what was coming. So was Senator Hatch’s Communications Director, Matt Whitlock. Yesterday he tweeted to his followers to “Keep an eye on Ed’s tweets the next few days” and flagged one of Whelan’s hints that he had information that would exonerate Kavanaugh. As I explain here, as soon as it was clear that Whelan’s gambit was a debacle – without about 2 hours of the tweets going out – Whitlock deleted that tweet from the day before.

Now what does this all mean? At a bare minimum we know that one of Kavanaugh’s top advisors constructed a bizarre conspiracy theory which accused a presumably innocent middle school teacher in Georgia of an attempted rape more than thirty years ago. But there’s a mix of direct and circumstantial evidence (which I’ve noted above) that strongly suggests that Kavanaugh’s top advisors and Kavanaugh himself were at least aware of this reckless scheme and likely played some part in developing it. Whether they knew Whalen was going to roll it out in the way he did tonight is less clear. But their hands are likely dirty with this. Kavanaugh’s knowledge and involvement is an obvious point to be examined in is his expected testimony on Monday.

Let me conclude by shifting gears to a bit of speculation. How did all this happen tonight? How did a respected lawyer take such a reckless step? My best guess is this.

It is highly likely that Whelan and his associates spent the last two or three days shopping this story to reporters. The Times Maggie Haberman first retweeted Whalen’s thread and then deleted those retweets. She then said that Whelan’s theory was “something Kavanaugh allies had privately said could be the case for days.” In other words, they were shopping it to reporters. The problem almost certainly was that no one would bite. How could they? Again, read the thread. It’s really nuts and wildly reckless. There’s no way any reputable publication could push this out into the public discussion. So Whelan and whoever else he was working with decided he needed to force the matter and publish it himself. Indeed, Haberman suggests something a similar. “Doing it this way, as an apparent reaction to Ford likely testifying, suggests a level of panic.”

As I noted last night, Senate Republicans had manage to reunify around the demand that Blasey Ford testimony Monday on their terms. She softened her stance somewhat today and that seemed to shift the balance somewhat, making their unified stance a bit more wobbly and possibly unsustainable. This new development, especially if Kavanaugh is tied to it in any way, both undermines his claims of innocence and much more clearly suggests a streak of recklessness and deception that could prove deeply, perhaps fatally damaging.