Who Owns Kavanaugh #5: Closing Arguments & Next Steps
We summarize the case against Brett Kavanaugh and argue that he should resign from the Supreme Court.
This series is written by Greg Olear in collaboration with Lincoln’s Bible.
Prologue: Holy Redeemer (November 2018)
He felt the familiar jolt of adrenaline as soon as he set foot in the gym. How could he not? DeMatha Catholic High School was an athletic powerhouse, after all. More that a dozen future NBA players had cut their teeth on these hallowed courts, including Adrian Dantley, Danny Ferry, Victor Oladipo, and Markelle Fultz. He’d played here plenty of times himself.
When he reached center court, he closed his eyes and took a deep breath. He could smell the sweat. He could hear the squeak of shoes on the hardwood, the snap of the nets, the scoreboard buzzer. He reached into his pocket, pulled out his trusty whistle, twirled it around his finger. “Hi, Coach K,” said one of his players, the starting center. He opened his eyes and grinned. “Hi, Elizabeth.”
Under his careful watch, the layup lines were crisp and well organized. Some of the girls were nervous, especially the players on his U-12 team—this was a tournament at a strange high school, a new experience for most of them. He’d have to bark instructions even louder than usual today. Arms up! Deny her the basket! Deny her the ball! Get back on D! And the typical exhortation to eleven-year-old girls too passive to let it fly: Shoot! Shoot! SHOOT!
And bark instructions he did, all afternoon, especially in the second half, when his frustrations were evident. His face was red as he patrolled the sideline, his features curled up into a scowl familiar to his players and anyone who’d watched the confirmation hearings two months earlier.
But it was all in vain. His expert coaching could not save this plodding, overmatched team. Holy Redeemer of Kensington were heavy favorites, and they had it going all afternoon, beating defenders off the dribble, dismantling the box-and-1. The game was a blowout—the worst kind to coach.
But what did it matter? Not long ago, he thought that he may never again get to do the thing he most enjoyed. “I love coaching more than anything I’ve ever done in my whole life,” he told his detractors. “But thanks to what some of you on this side of the committee have unleashed, I may never be able to coach again.”
Less than two months later, here he was, with his clipboard and his ice packs and his bag of practice balls. The team might have taken the “L,” but today was a victory for Coach K.
Brett Kavanaugh was back on the bench.
Chances are, no one who read all 20,000-some-odd words of this series needs much convincing that Brett Kavanaugh is compromised and should be removed from the bench. That was obvious to a majority of Americans in 2018.
Even so, let us review the case against him. Let’s highlight the crimes.
At his original confirmation hearing in 2006, and again at his second confirmation hearing 12 years later, Brett Kavanaugh lied. Under oath. A lot. How did he perjure? Let us count the ways:
We have already covered the whoppers about his $245,000 down payment (2006) and the sudden and inexplicable clearing of his massive credit card debt (2017), as well as the odd tale of the baseball tickets. But not all his equivocations were about money.
Brett claimed to be “shocked” by his mentor Alex Kozinski’s misogynistic and sexually inappropriate behavior, which, as we have seen, was an open secret even to law students 3,000 miles away. He claimed not to have been on the disgraced former judge’s lewd-joke email list. Is it conceivable that of all the hundreds of people on Kozinski’s “Easy Rider Gag List,” the judge’s “good friend” Brett Kavanaugh—who in high school chortled with future internet troll Mark Judge about boofing and Devil’s Triangles—was not receiving, and enjoying, those emails?
Brett was evasive about his role in George W. Bush installing controversial and ethically deficient judge Charles Pickering to the Fifth Circuit as a recess appointment. He dodged the question in his 2006 written testimony, and when asked about it on the stand, was evasive and vague.
He suffered a convenient memory lapse when now-VP Kamala Harris grilled him about his communications with lawyers in the office of Marc Kasowitz, Donald John Trump’s personal attorney. She made him squirm in the way honest men don’t tend to squirm:
He said “boof” meant “flatulence.” That’s a bunch of hot air.
He said “Devil’s Triangle” was a drinking game. It’s not.
He told Senator Amy Klobuchar that he had never, not once, consumed so much alcohol that he could not remember all or parts of what he’d done while intoxicated—and he said it in such a way as to suggest that she was the one with the drinking problem. Remember: this is a guy who initiated a bar brawl because he thought a New Haven local was the lead singer of UB40, and who copped to sometimes drinking “too much beer” in his youth. There is simply no way he’s never blacked out. In fact, one of his old college drinking buddies, Chad Ludington, said so in a statement: “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.”
With regard to Dr. Ford’s allegations—and to the allegations of another accuser, his Yale classmate Deborah Ramirez—Brett gave a hostile statement in which he indignantly insisted on his innocence. “I’ve never sexually assaulted anyone,” he said. “Not in high school, not in college, not ever.”
Even the high school calendar he reproduced, which purported to clear him of the charges, may have been doctored. Although an oversized calendar was used as a prop on the subsequent Saturday Night Live sketch, in which Kavanaugh was played by the much-handsomer Matt Damon, real-life Senators only saw a PDF of the document, not the original. And the PDF shows signs of tampering. (If the document were tampered with, introducing false evidence would be a crime.)
Finally, Brett flat-out lied about his role in the crafting of the “torture memo,” and the post-9/11 surveillance policies of the Bush Administration, when he worked with John Yoo in the Office of Legal Counsel. He led us to believe he had nothing to do with those discussions. He absolutely did. That was a lie, and therefore a crime.
Indeed, Kavanaugh’s role in the initial “torture memo” discussions involved the justice he replaced, Anthony Kennedy—just to bring it full circle. As NPR reports:
In fact, in 2002, Kavanaugh and a group of top White House lawyers discussed whether the Supreme Court would uphold the Bush administration’s decision to deny lawyers to American enemy combatants. Kavanaugh advised the group that the Supreme Court’s swing voter, Justice Anthony Kennedy, would probably reject the president’s assertion that the men were not entitled to counsel.
A 2018 piece in The Atlantic hints at why Bush wanted Kavanaugh, specifically, on the D.C. Circuit in 2006:
Leahy, meanwhile, sent a letter to Attorney General Alberto Gonzales asking him to investigate whether Kavanaugh had lied. “False testimony by any witness is troubling and undermines the Senate’s ability to fulfill its constitutional duties on behalf of the American people,” Leahy wrote. “But my concern is heightened because the subject matter of the possibly false testimony was highly controversial and played a critical role in many Senators’ consideration of Mr. Kavanaugh’s appointment to one of the courts most involved in reviewing those very same detention policies.”
In March 2008, the Justice Department wrote back to Leahy, saying the public-integrity section had “reviewed this matter and determined there was not sufficient basis to initiate a criminal investigation.” (In a strange coincidence, the person who signed the letter was Brian Benczkowski, who was [in the summer of 2018] confirmed to lead the DOJ’s criminal division despite controversy over his representation of a Russian bank.) Kavanaugh continued to sit on judicial panels that considered detainee-related questions.
That’s, like, a lot of falsehoods. It’s exhausting to keep track of all of them. And while some of these lies are less egregious than others—does it really matter what “boof” means?—a lie under oath is a lie under oath. Perjury is perjury. That’s a lesson the nation learned from (checks notes) Brett Kavanaugh himself, who, as part of the Ken Starr legal team, crafted the strategy of impeaching Bill Clinton for lying under oath about a blowjob.
Which begs the question: What can we do about it? Brett Kavanaugh was confirmed to a lifetime seat on the Supreme Court. It would require the vote of two-thirds of the Senate to remove him via impeachment, which is never happening—not when corrupt authoritarians like Mike Lee, Tom Cotton, and Ron Johnson remain Senators. Are we really stuck with this snide, arrogant Pabst Blue Ribbon enthusiast until the day he dies?
Perjury is a federal crime. So is tax fraud. So is bank fraud. While Supreme Court Justices must be impeached to be removed for ethics violations and that sort of thing, if they actually commit crimes, they can be prosecuted—just like anyone else. No one is above the law. If Brett Kavanaugh shot a man on Fifth Avenue, we wouldn’t refer to 50-year-old legal memos for guidance on what to do about it. He’d be arrested, indicted, tried, and convicted, like any murderer.
With Trump in the White House, Bill Barr at Justice, and Steve Mnuchin—who may be more corrupt than even Trump and Barr—at Treasury, the executive branch was never going to dig into Brett’s boners. Chief Justice John Roberts, who has been chummy with Kavanaugh for two decades, torpedoed the 83 ethics violations against Brett two months after he was confirmed. The FBI was not able to properly investigate Kavanaugh in 2018, for reasons former assistant FBI director Frank Figliuzzi has explained. And the House had bigger fish to fry from 2018-20.
But now? At long last, we are in the position to learn the truth. PREVAIL contributor Moscow Never Sleeps laid out the following scenario in detail in December, and more colorfully last month on the PREVAIL podcast: The chair of the House Ways & Means Committee, Rep. Richard Neal of Massachusetts, could request Kavanaugh’s tax returns and other documents from Treasury Secretary Janet Yellen. Once confirmed, AG Merrick Garland—who was Kavanaugh’s boss on the D.C. Circuit, remember, and thus familiar with all those ethics violations—could ask the FBI to re-open its previous two investigations, and open a new investigation into the financials and the perjury. President Biden could declassify the Bush torture memo documents that pertain to Kavanaugh.
Basically, Democrats could, quietly, build a potential criminal case—or cases—against Kavanaugh. Cross-referencing his tax returns, his financial disclosure statements, his bank statements, his mortgage application, and his credit card statements would answer a lot of open questions—including the one we’ve been asking for two-and-a-half years, and that is the title of this series: WHO OWNS KAVANAUGH?
At that point, the answer would be: the Department of Justice. If a U.S. Attorney were to slide a file across a desk and tell Kavanaugh, “We know who paid off your credit cards,” Brett could then be given a choice: 1) resign from the Court, and take a job at Kirkland & Ellis or some other white-shoe law firm, making seven figures a year; or, 2) face criminal indictment that may result in conviction—which would mean not only removal from the bench, but from the bar. That would cost him his seat on the bench and his license to practice law. Spoiler alert: Justice Baseball Tickets would take the money.
This process would be invisible to the American public. From the outside, it would look like what Trump promised about covid-19: One day, like a miracle, Kavanaugh would just disappear.
The Big Picture
There are 435 members of the House of Representatives. How many can you name? There are 100 Senators. How many can you name? There are just nine Supreme Court Justices, and chances are, you can name all of them (or eight of nine; Breyer is the one on the tip of your tongue). That should not be the case.
For a generation, Anthony Kennedy—a man whose father was the attorney for a mobster’s fixer, and whose son worked for the crookedest bank in the world—was the “swing vote.” Now the swing vote might be John Roberts. It might be Amy Coney Barrett. Heck, it might be Kavanaugh. All three of these individuals were involved with the heist of the 2000 election in Florida. All three are Leonard Leo selections.
A dramatic expansion of SCOTUS would create an environment where the Court better reflects the diversity of the U.S. population—and, more importantly, where a single individual doesn’t determine the balance of the court for generations. We have seen proposals to expand the number of Justices to 13, because there are 12 circuit courts plus D.C. We think the number should be much higher than that. Why not 27 Supreme Court Justices? Why not 81?
A higher number would ensure that, even if a gaggle of self-flagellating anti-choice Opus Dei adherents take the robes, that faction doesn’t have a disproportionate amount of power. A higher number means better decisions, because it means fewer out-of-left-field rulings. A higher number means eighty-year-old justices can retire when they wish, and not have to hold out for a president who isn’t a mobbed-up criminal. A higher number means we don’t have to monitor an elderly justice’s cancer markers and exercise routines. A higher number means we don’t have to know the names of the insanely powerful individuals who sit on the bench, who determine our collective fate.
In 2020, Republicans made “court packing” a campaign issue. Brett’s favorite team is the Nationals; when it comes to SCOTUS, our favorite team is the Packers! We hope that Joe and Kamala dramatically expand the Court. It would be the single best thing they could do to protect our democracy.
And make no mistake: democracy itself is at stake here.
Sic Semper Tyrannis
Brett Kavanaugh has been on the Supreme Court for over two years, and the world has not fallen off its axis. Brown v. Board of Ed. is still the law of the land. Roe has not been overturned. Not only that, but Justice Kavanaugh voted against Donald John Trump in every decision relevant to the disgraced former White House occupant’s vain attempt to overturn the results of the 2020 election.
Indeed, there is some cause for optimism regarding his future on the Court. “I think he’s tending to be less of an ideologue than the other conservatives,” an attorney of my acquaintance, a longtime watcher of the Supreme Court, told me. “He [recently] joined with Roberts on an administrative law labor case. Keeping his feet to the fire will likely keep him unwilling to travel to Crazytown with the rest of the crew.” Even Clarence Thomas, the first-generation radical Catholic on the high court, is not thrilled with him.
So, like, what was it all for? Why did Leonard Leo’s dark money group invest so much dough to get this guy a SCOTUS seat? Why did Lindsey Graham have a hissy fit at the hearing? Why did most of the Republican Senators ignore Kavanaugh’s finances, his perjury, his Bush 43 fuckery, and the impossible-to-be-more-credible accusations of Dr. Ford, and give him the thumbs up? Why did Kavanaugh himself not withdraw, rather than subject himself and his young family to such ugly public scrutiny?
There are scores of qualified candidates with the FEDSOC seal of approval. Why this guy specifically? Why the one with the fishy financials and the dirty trickster buddies and the history of drunken sexual assault? Why Kavanaugh? Why?
And don’t tell us it’s all because of abortion. Rich old men don’t invest millions of dollars to ensure that poor young women can’t terminate an unwanted pregnancy.
This isn’t about choice.
It’s about power.
The moribund Republican Party, with its shrinking demographics, is well aware that it must suppress votes to stave off irrelevance. That explains the spate of voter suppression laws being passed in GOP-controlled state legislatures. The party’s lawyer admitted as much, when arguing for restrictive voting laws in Arizona—a state that went for Biden in 2020:
When asked by [Amy Coney] Barrett what the state Republican Party's interest in the case was, he replied: “Because it puts us at a competitive disadvantage relative to Democrats. Politics is a zero sum game. And every extra vote they get through unlawful interpretations of Section 2 hurts us. It's the difference between winning an election 50-49 and losing an election.”
A high court that includes five Leonard Leo justices plus his mentor Clarence Thomas is very likely to agree with the oligarchical argument of the GOP’s attorney that Section 2 is being unlawfully interpreted. That’s a blow to democracy.
And that’s not the worst of it.
The so-called Rehnquist Concurrence dates to the election of 2000. Back then, youthful Brett was one of a phalanx of GOP attorneys working like sixty to end the Florida recount and hand the White House to George W. Bush. George Conway was part of that group. So was John Roberts. So was Amy Coney Barrett. The Federalist Society All-Star Team cooked up two arguments to make their case. Ironically, the one that didn’t win them Florida in 2000 is the argument that could, in the years ahead, come back to bite democracy in the ass.
Moscow Never Sleeps broke this down in detail in his “How to Fix the Supreme Court” series, but in a nutshell, the argument Rehnquist made is that Article II of the U.S. Constitution grants the Supreme Court the power to overrule state supreme courts on state laws concerning presidential elections—especially in matters concerning the selection of electors. “This exception is a potential gamechanger,” Moscow writes. “After all, every law a state makes regarding how its citizens vote in federal elections ultimately touches how it selects its Presidential electors.”
Back in 2000, he explains,
Scalia (whose son worked for the Bush team’s law firm), Thomas (whose wife worked for the Bush campaign), and Rehnquist (who always appreciated a practical joke played on someone else) [filed] a concurrence, written by the Chief Justice, lauding the Article II argument and leaving it in writing for later use.
Fast forward twenty years until this past October. In Democratic National Committee v. Wisconsin State Legislature, the pre-Barrett Court ruled 5-3 to allow the GOP Wisconsin State Legislature (over the Democratic Governor’s veto) to cut short to Election Day the date on which mail-in-ballots, in order to be counted, must be received. By itself, DNC v. Wisconsin is an unremarkable and generally uncontroversial decision: substantively, many battleground states such as Florida have identical deadlines with no perceived offense to federal prerogatives; procedurally, SCOTUS was hearing a review from a lower federal court on federal questions raised by a state legislative act. So Bush generally, and the Rehnquist Concurrence on the Article II exception specifically, had no reason to be mentioned or analyzed with approval in the Wisconsin case.
Guess which Justice snuck the Rehnquist Concurrence into DNC v. Wisconsin? You got it: Brett Kavanaugh! He cited it in his own concurrence to the decision, suggesting, as Moscow Never Sleeps put it, “that as irrelevant as it might be in Wisconsin, Rehnquist’s Bush comments might be useful in cases where the legislature and supreme court of a state were in conflict over electoral rules.” The result? “Almost immediately, federal appellate courts and state legislatures took the hint that they should try to use the Rehnquist Concurrence in their rulings to direct cases to the Supreme Court, which may enshrine that poisoned pill into actual precedent.”
What this means, in plain English, is that the Supreme Court may, one day soon, have the power to overturn presidential elections. And that argument is gaining steam among the Leonard Leo crew of justices, which already comprises two-thirds of the high court. “Presidents will effectively be chosen by the legislatures of most large swing states,” Moscow writes, “similarly to how Senators were elected before the Seventeenth Amendment.” Kavanaugh seeks to “boof” democracy.
The result will be minority rule—with Leonard Leo’s radical Catholic “Crusaders” as the gatekeepers.
In a word, tyranny.
Our goal for this series is to inspire more investigative journalism—by professional reporters and citizen researchers both—into Brett Kavanaugh. We want to put the nation’s attention back on this abomination on our high court.
As another, vastly better jurist once wrote, “Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.” Our hope is that, as Louis Brandeis suggested, shining a spotlight on Kavanaugh’s fishy finances, his sketchy activities in the Bush 43 White House, and his ugly association with both dirty political operatives and the Leonard Leo/radical Catholic cabal will inspire the American people to rise up and demand his resignation.
Brett Kavanaugh must step down. Not because of his politics, as ugly as they are. Because he’s compromised. Because he perjured himself in his Senate testimonies. Because he’s beholden to powerful people, and we don’t know who they are. And because he’s on the bench for the rest of his life.