Thiru Vignarajah, a Democrat, previously served as an assistant U.S. attorney for the District of Maryland from 2009-2011 and as deputy attorney general of Maryland from 2015-2016. He was a law clerk to Supreme Court Justice Stephen G. Breyer from 2006-2007.
California professor Christine Blasey Ford has not accused Supreme Court nominee Brett M. Kavanaugh of “youthful indiscretions,” “rough horseplay” or “misconduct,” as some have benignly characterized it; she accused him of serious, jarring crimes. Her courage to come forward deserves more than empty theater ahead of a preordained confirmation. It warrants a fair-minded criminal investigation by Maryland prosecutors.
If the allegations contained in Ford’s letter to Sen. Dianne Feinstein (D-Calif.) are true — that 17-year-old Kavanaugh, with the aid of a confederate, pushed a young girl into a bedroom, locked the door and played loud music to drown out her protests; physically pinned her down and groped her; and when she tried to scream covered her mouth, making it hard for her to breathe — Kavanaugh could have been charged as an adult back then with a range of offenses from assault to attempted rape.
While the FBI conducts background checks on White House nominees and can, as it has in other confirmations, interview additional witnesses to inform Senate deliberations, it is typically local law enforcement officials and prosecutors who investigate sexual assault crimes and decide what, if any, charges are appropriate.
Some of the possible alleged offenses in this case, such as false imprisonment, are misdemeanors whose statutes of limitations ran out long ago. But other potential charges are not necessarily barred, even today, because Maryland has not imposed time limits on certain felony crimes.
For example, attempting a sexual assault with the aid of another person counts as attempted first-degree rape, just as restricting a victim’s breathing to stop her from shouting for help could fairly qualify as first-degree assault. Both are felonies with no statute of limitations in Maryland. Likewise, under Maryland law, using force to move a victim a short distance, even from one room to another, can amount to kidnapping, a crime that similarly has no limitations period. There are examples across the country where convictions for kidnapping have been upheld in cases where rapists took the victim just to a separate room to commit the crime.
To be sure, the allegations go back 35 years, to when the accomplished federal judge was a high school senior. What may or may not have taken place at a Bethesda home in the early 1980s would no doubt be hard to prove at trial and might not, in the judgment of local prosecutors, justify criminal charges all these years later.
But sexual assault prosecutions are always difficult to try, and decisions about whether to bring charges are properly made after, not before, an investigation is complete. Plus, here, Ford has already named a potential witness to the alleged attack, voluntarily subjected herself to a lie detector test and, in 2012, told others who could corroborate her account of what happened.
Just as Ford deserves to have her allegations taken seriously, Kavanaugh is entitled to the presumption of innocence. But it is the responsibility of local authorities to investigate a credible criminal allegation to determine what happened. And it is not uncommon for police and prosecutors to pay closer attention in high-profile cases, even cold cases, when prominent individuals such as Harvey Weinstein or Bill Cosby are accused of crimes. That is partly to combat the impression that people with power get away with crimes when others do not, and partly to vindicate the wrongly accused if defamatory claims prove false.
In this case, an impartial investigation would not just be for the sake of the alleged victim; it would also be good for Kavanaugh and the integrity of the Supreme Court. The Senate, after all, will soon take a fateful vote in circumstances that have already placed the legitimacy of the court at risk, even before the latest revelations: This will be the first time in American history that a president at risk of impeachment and under criminal investigation will name a justice to the Supreme Court. Neither Bill Clinton nor Richard Nixon nor Andrew Johnson did that.
This is no time to push through a nominee without addressing the cloud of criminal uncertainty overhead. An expedited investigation confined to a short list of witnesses and this specific incident could, one way or the other, provide the resolution the Senate needs before it decides whether to confirm Kavanaugh.
Unlike virtually every other act of government — from executive orders to congressional statutes — a presidential appointment to the Supreme Court is one of the few under our Constitution that cannot be undone except under the extraordinary circumstance of impeachment. One exquisitely American tenet the court affirms every day is that no one is above the law.
Ford, at great risk to herself, has put that to the test. For the Senate to pass this test, authorities in Maryland must have the time to do their job, before the ink of history irreversibly dries.