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Opinion An ugly new twist in the Kavanaugh saga raises very unpleasant questions

Supreme Court nominee Brett M. Kavanaugh on Sept. 6 during his confirmation hearing on Capitol Hill. (J. Scott Applewhite/AP)

On Thursday night, Twitter was aflame with the news that a prominent conservative legal strategist had gone public with the theory that another man may have been the perpetrator of the alleged sexual assault against Christine Blasey Ford.

The strategist suggested that Ford had confused this man for Judge Brett M. Kavanaugh — and worse, he named the other man, in effect publicly accusing him of committing attempted rape.

Ford promptly denied that she had confused this man for Kavanaugh, whom she has accused of attacking her when both were teenagers during the 1980s. But, as some commentators — including conservative ones — were quick to point out, Kavanaugh needs to clarify whether he had any advance knowledge of this strategy of pinning the blame on someone else.

Senior Democratic aides tell me that, in the upcoming Judiciary Committee hearing, Senate Democrats are likely to pose questions along these lines directly to Kavanaugh, when he is under oath.

As Supreme Court nominee Brett Kavanaugh faces a sexual misconduct allegation, columnist Ruth Marcus asks, who's responsible for the burden of proof? (Video: Gillian Brockell/The Washington Post)

The conservative strategist who floated the alternate attempted rape theory, Ed Whelan, has been active in conservative judicial circles for a long time, and is close to Kavanaugh. He posted a long Twitter thread — which we will not link to here, and nor will we name the man he fingered — that rather creatively employed maps and floor plans of the house at which he suggested the attack took place. Whelan also posted the name and a photo of his alternate suspect.

The Post reports these details on Whelan’s relationship with Kavanaugh, and crucially, on private conversations Kavanaugh has been having with his strategists:

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.

What this says is that Whelan has helped advise Kavanaugh’s strategy, and that Kavanaugh has been involved in developing a strategy of acknowledging that the attack did happen while saying it wasn’t him, but it does not directly connect Kavanaugh to Whelan’s particular strategy of publicly accusing someone else of the attack.

Democratic aides tell me it’s likely that questioning about these topics will come up at the hearing.

“Staff on the Judiciary Committee were floored by Whelan’s tweets last night,” one senior Senate Democratic aide told me. “It’s obviously important to know if Kavanaugh took part in the creation of the conspiracy theory.”

The senior aide also noted that this was particularly important to pursue given that a particular person was named, and because it constituted an open acknowledgment by a top Kavanaugh ally that “the party in question” — where the alleged attack took place — “actually happened.”

“Expect questions about this at the hearing next week, assuming it comes together,” the aide said. Republicans have invited both Ford and Kavanaugh to testify, though the skirmish continues between Ford and Republicans over timing, as well as the question of whether others will be subpoenaed. If the hearing happens, Kavanaugh will be subject to questioning from Democrats.

Whelan apologized on Friday morning for publicly implicating someone else, and it is, of course, entirely possible that Kavanaugh had no knowledge whatsoever of Whelan’s machinations. Indeed, it is worth noting that if Kavanaugh did know or had been involved in discussions about this strategy, and either tacitly allowed Whelan to proceed or did not actively try to stop it, it would constitute an unthinkably boneheaded blunder on his part — which perhaps militates against him having knowledge of it.

Still, there are plenty of unanswered questions about this episode hovering around. On Thursday, a top aide to Sen. Orrin G. Hatch, a Utah Republican who sits on the Judiciary Committee, mysteriously told everyone to keep an eye on Whelan’s Twitter feed. Though he has since claimed no knowledge of Whelan’s plan, this at least raises questions as to whether it had come up in internal discussions with the very Republicans who will vote to move Kavanaugh’s nomination forward.

Indeed, Steve Schmidt, who ran Supreme Court confirmation efforts for Republicans in the past but recently left the GOP, was quite forceful on this point. He noted on Twitter that “it is inconceivable to me,” based on his own experience, “that Whelan published that email without discussions, debate and assistance” from the White House and “GOP Senators and staff.”

When it comes to Kavanaugh’s role, we do know, per The Post’s reporting above, that Kavanaugh was at least involved in discussions about a strategy that would acknowledge the attack but say it was someone else — which itself invites further questioning.

And Schmidt raised the question on Twitter as to whether the nominee might have known or been involved in Whelan’s strategy in some way. Schmidt cautioned that “no one should presume” Kavanaugh had knowledge, but added pointedly: “if he did, it utterly and irrevocably disqualifies him as a Justice of the United States Supreme Court.”

Tom Nichols, a conservative commentator, agreed:

Well, Kavanaugh may indeed have his chance to “clear this part of the current crapstorm up” soon enough.