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The Details Behind The Sexual Misconduct Allegations Against Brett Kavanaugh

The allegations are deeply disturbing.

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(Photo by MANDEL NGAN/AFP/Getty Images)

Yesterday, the legal world was shaken by news that an allegation of sexual misconduct against Supreme Court nominee Brett Kavanaugh had been referred to the FBI. Senator Diane Feinstein revealed she was in possession of a letter from a woman who detailed an incident allegedly involving Kavanaugh when he was in high school. Feinstein had the letter since July, but she hadn’t shared the contents of the letter with other senators on the Judiciary Committee.

Though initial details of the allegation were vague, in an article for the New Yorker, Ronan Farrow and Jane Mayer were able to uncover the unsettling allegations:

In the letter, the woman alleged that, during an encounter at a party, Kavanaugh held her down, and that he attempted to force himself on her. She claimed in the letter that Kavanaugh and a classmate of his, both of whom had been drinking, turned up music that was playing in the room to conceal the sound of her protests, and that Kavanaugh covered her mouth with his hand.

Kavanaugh and the classmate referenced have offered the following statements:

In a statement, Kavanaugh said, “I categorically and unequivocally deny this allegation. I did not do this back in high school or at any time.”

Kavanaugh’s classmate said of the woman’s allegation, “I have no recollection of that.”

One question looming over the budding scandal is why, if Senator Feinstein had possession of the letter back in July, did she wait until yesterday to refer it to the FBI and make a statement about it? According to the New Yorker article, the issue observers suspected — privacy for the accuser — played a role, along with what seems like a badly miscalculated political gamble:

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Sources familiar with Feinstein’s decision suggested that she was acting out of concern for the privacy of the accuser, knowing that the woman would be subject to fierce partisan attacks if she came forward. Feinstein also acted out of a sense that Democrats would be better off focussing on legal, rather than personal, issues in their questioning of Kavanaugh.

I certainly sympathize with the notion that victims of sexual assault  are hesitant to come forward. Particularly given the magnitude of the stakes, the attacks can get downright brutal — just ask Anita Hill. But… if Feinstein was going to talk about it anyway (it doesn’t appear as though the alleged victim in this case had a last-minute change of heart), it seems Feinstein did the American people a grave disservice by waiting so long. Because this question of character is of utmost importance before we hand a man a lifetime appointment. I don’t want Louis C.K. trying to make me laugh anymore because I know he jerked off in front of women, and I certainly don’t want someone who allegedly held a woman down as she struggled to determine the course of American jurisprudence for the next 40 years. But due to the timing and the partisan nature of the confirmation process, the inquiry into what actually happened will be cut short.

According to the New Yorker, Feinstein’s office also felt the alleged incident was too long ago to be of much use in the confirmation hearings. Even Democratic members of the Judiciary Committee also were kept in the dark about all the details until media inquiries became too numerous:

Feinstein’s decision to handle the matter in her own office, without notifying other members of the Senate Judiciary Committee, stirred concern among her Democratic colleagues. For several days, Feinstein declined requests from other Democrats on the Judiciary Committee to share the woman’s letter and other relevant communications. A source familiar with the committee’s activities said that Feinstein’s staff initially conveyed to other Democratic members’ offices that the incident was too distant in the past to merit public discussion, and that Feinstein had “taken care of it.” On Wednesday, after media inquiries to the Democratic members multiplied, and concern among congressional colleagues increased, Feinstein agreed to brief the other Democrats on the committee, with no staff present.

It seems other members of the Senate committee were surprised by Feinstein’s handling of the situation as well:

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Sources who worked for other members of the Judiciary Committee said that they respected the need to protect the woman’s privacy, but that they didn’t understand why Feinstein had resisted answering legitimate questions about the allegation. “We couldn’t understand what their rationale is for not briefing members on this. This is all very weird,” one of the congressional sources said.

Senate Republicans have denied that they were aware of the substance of these allegations against Kavanaugh before they were made public. However, they also conveniently had ready a letter from 65 women who knew Kavanaugh in high school saying he “behaved honorably and treated women with respect,” as John Bresnahan of Politico tweeted out.

But, as others have noted, it seems awfully strange that they just happened to have a letter from 65 people ready to go the day after they supposedly learned of the allegations.

The Senate vote on Kavanaugh’s nomination is scheduled for next Thursday, September 20th.

headshotKathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

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