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Here’s where Kavanaugh’s sworn testimony was misleading or wrong

Supreme Court nominee Brett M. Kavanaugh adamantly denied Christine Blasey Ford's allegation of sexual assault before the Senate Judicary Committee on Sept. 27. (Video: Jenny Starrs/The Washington Post, Photo: Matt McClain/The Washington Post)

This article has been updated.

As he began his questioning of Supreme Court nominee Brett M. Kavanaugh on Thursday, Sen. Richard Blumenthal (D-Conn.) asked Kavanaugh about a point of procedure in criminal trials.

“As a federal judge, you’re aware of the jury instruction falsus in omnibus, are you not?” Blumenthal asked. “You’re aware of that jury instruction?”

Kavanaugh said he was, but he deferred to Blumenthal for a direct translation.

"False in one thing, false in everything,” Blumenthal replied. “Meaning in jury instructions that we — some of us as prosecutors have heard many times, is — told the jury that they can disbelieve a witness if they find them to be false in one thing.”

Blumenthal's point was that the exceptional hearings centered on the credibility of Kavanaugh and his accuser, Christine Blasey Ford, who alleged that she'd been assaulted by Kavanaugh at a house party in 1982 when both were in high school. Over the course of his testimony, though, Kavanaugh offered several answers to questions that stretched or misrepresented the truth.

Here are those responses — and some for which he's incorrectly been accused of having been untruthful — in chronological order.

Kavanaugh’s opening statement

Supreme Court nominee Brett M. Kavanaugh delivered an opening statement to the Senate Judiciary Committee on Sept. 27, after being accused of sexual assault. (Video: Reuters)
“Some of you were lying in wait and had it ready. This first allegation was held in secret for weeks by a Democratic member of this committee, and by staff. It would be needed only if you couldn’t take me out on the merits. ... This whole two-week effort has been a calculated and orchestrated political hit...”

Kavanaugh here refers to how Sen. Dianne Feinstein (D-Calif.) had received a letter in July detailing Ford’s allegation, and that it was released publicly only this month. He implies that the letter was withheld until a politically expedient point as part of a political “hit.”

Feinstein has said that she was unable to move forward with the allegation because Ford wanted to remain anonymous. On Thursday, Ford testified that she decided to step forward once the media learned about the letter. (Feinstein also denied leaking the letter.)

“I never attended a gathering like the one Dr. Ford describes in her allegation.”

The word “like” is carrying a lot of weight in that sentence, but it's clear from Kavanaugh's later testimony and the personal calendars he submitted to the Senate Judiciary Committee that he attended parties like the one Ford describes — up to the point of the alleged assault. More on this below.

“She and I did not travel in the same social circles.”

Ford testified that in the spring and summer of 1982 she was going out with a friend of Kavanaugh’s nicknamed “Squi,” who appears more than a dozen times on Kavanaugh’s calendar of social events.

“Dr. Ford’s allegation is not merely uncorroborated, it is refuted by the very people she says were there, including by a long-time friend of hers. Refuted.”

As we noted Thursday, Kavanaugh’s presentation of what the others have allegedly said about Ford’s accusations is misleading.

At various points in his testimony, Kavanaugh said that the two male friends alleged to have been at the party, Mark Judge and P.J. Smyth, had sworn under penalty of perjury that the party didn’t happen. Both actually said that they didn’t recall the party as described, and Judge’s statement to that effect didn’t carry the weight of sworn testimony. (After Kavanaugh’s testimony was complete, he submitted a letter that met that standard.)

At other points, Kavanaugh refers to the fact that the four witnesses that Ford alleges were at the party all rejected her account. One of those four witnesses is Leland Keyser, who told The Washington Post in a brief interview that she believed Ford’s allegation, although she didn’t remember the party. Another of the four witnesses is Kavanaugh.

“The event described by Dr. Ford presumably happened on a weekend because I believed everyone worked and had jobs in the summers. And in any event, a drunken early evening event of the kind she describes, presumably happened on a weekend. ... If the party described by Dr. Ford happened in the summer of 1982 on a weekend night, my calendar shows all but definitively that I was not there.”

Ford never said when the alleged incident occurred. It’s also not the case that Kavanaugh’s social circle restricted its drinking bouts to weekends in the summer. Judge, Kavanaugh’s friend, wrote in a book about his battle with sobriety that he would often show up to work either hungover or still intoxicated from the night before.

"The calendars show a few weekday gatherings at friends' houses after a workout or just to meet up and have some beers. But none of those gatherings included the group of people that Dr. Ford has identified. And as my calendars show, I was very precise about listing who was there; very precise. "

There’s one entry, on July 1, that indicates that Kavanaugh, Judge, Smyth and the boy Ford says she was going out with were headed to a friend’s house for “skis” — acknowledged by Kavanaugh during his testimony as a gathering that involved drinking.

It’s hard to judge how detailed the attendee lists presented on Kavanaugh’s calendar are, but on multiple occasions he refers to parties in the abstract or to events that he acknowledged included people beyond those mentioned. (An example: When he’d go lift weights at a friend’s house.)

“My friends and I sometimes got together and had parties on weekends. The drinking age was 18 in Maryland for most of my time in high school, and was 18 in D.C. for all of my time in high school. I drank beer with my friends.”

Kavanaugh is being misleading.

The drinking age in Maryland was 18 when Kavanaugh was a freshman, sophomore and junior in high school — when he was 15, 16 and 17 years old. In the summer of 1982 — on July 1, in fact — it was increased to 21, but those who were already 18 were grandfathered in. Kavanaugh turned 18 in 1983.

At other points in his testimony, he claimed that seniors could drink legally when he was in high school. That was true — until he was a senior.

“One of our good female friends who we would admire and went to dances with had her name used on the yearbook page with the term ‘alumnus.’ That yearbook reference was clumsily intended to show affection, and that she was one of us. But in this circus, the media’s interpreted the term is related to sex. It was not related to sex.”

Kavanaugh here is referring to yearbook mentions of a woman named Renate Schroeder Dolphin, who had joined 64 other women in signing a letter of support for his candidacy. She then learned that Kavanaugh and his friends had referred to themselves as Renate alumni in their yearbook, which she recognized as an insinuation that she was promiscuous and had engaged in intimate relationships with each of the boys.

Bolstering Dolphin’s perception of the meaning of the term was a poem one of Kavanaugh’s classmates included in his yearbook entry: “You need a date / and it’s getting late / so don’t hesitate / to call Renate.” She told the New York Times that the insinuation was “horrible, hurtful and simply untrue.”

Kavanaugh's argument that the term was meant to show she was “one of us” is hard to believe — especially since she only learned of it after news reports chronicled it this month.

Responding to questions

Rachel Mitchell, the Republicans' prosecutor: “Dr. Ford described a small gathering of people at a suburban Maryland home in the summer of 1982. She said that Mark Judge, P.J. Smyth and Leland [Keyser] also were present, as well as an unknown male, and that the people were drinking to varying degrees. Were you ever at a gathering that fits that description?”
Kavanaugh: “No, as I’ve said in my opening statement.”

In a later set of questions, Mitchell asked a similar question.

Mitchell: “Is there anything [on your calendars] that could even remotely fit what we’re talking about, in terms of Dr. Ford’s allegations?”
Kavanaugh: “No.”

The latter response is noteworthy because Mitchell had just asked about the July 1 gathering (which included drinking) that Kavanaugh acknowledged was attended by Judge and Smyth.

Both answers seem to depend on the inclusion of Keyser in the question. In response to an earlier Mitchell question, Kavanaugh said this about her: “I — I know of her. And it — it's possible I, you know, saw — met her in high school at some point at some event. Yes, I know — I know of her and, again, I don't want to rule out having crossed paths with her in high school.”

Sen. Sheldon Whitehouse (D-R.I.) on Sept. 27 questioned Supreme Court nominee Brett M. Kavanaugh about the language in his high school yearbook entry. (Video: Reuters)
Sen. Sheldon Whitehouse (D-R.I.): “Judge, have you — I don’t know if it’s ‘boufed’ or ‘boofed’ — how do you pronounce that?”
Kavanaugh: “That refers to flatulence. We were 16.”
Whitehouse: “Okay. And so when your friend Mark Judge said the same — put the same thing in his yearbook page back to you, he had the same meaning? It was flatulence?”
Kavanaugh: “I don’t know what he did, but that’s my recollection.”


Whitehouse: “Devil’s triangle?” 
Kavanaugh: “Drinking game.”

Whitehouse is referring to comments in Kavanaugh’s yearbook that read, “Judge — have you boofed yet?” and simply “Devil’s Triangle.”

Some have claimed that this is a clear reference to vomiting, suggesting drunkenness, or perhaps that it refers to a form of alcohol ingestion meant to avoid the smell of alcohol on one’s breath. Others have said that “devil’s triangle” refers to a sexual encounter involving three people. There is not contemporaneous documentation of those terms available online that would suggest those meanings were Kavanaugh’s real intent. (Sites such as Urban Dictionary emerged only in the Internet era and may not be instructive about past slang.)

Update: Several readers who attended high school at about the same time as Kavanaugh have written in to suggest that “boof” is a compression of a vulgar term for anal sex. One noted a similar usage in the Frank Zappa song, “Valley Girl.”

High school slang is often very specific to small groups of people, so it’s hard to say that Kavanaugh was misleading here. We’ll note, though, that the New York Times’s David Enrich says he spoke with a number of Kavanaugh’s former classmates and that he thinks Kavanaugh was not being truthful.

To Whitehouse: “We in essence were having a party and didn’t pay attention to the game even though the game was the excuse we had for getting together.”
“I think that’s very common. I don’t know if you’ve been to a Super Bowl party for example, senator, and not paid attention to the game and just hung out with your friends. I don’t know if you’ve done that or not. But that’s what we were referring to in those — those two occasions.”

Kavanaugh was responding to questions about two other yearbook entries, one reading “Georgetown vs. Louisville — Who Won That Game Anyway?” and another reading “Orioles vs. Red Sox — Who Won Anyway?” The “party” referred to in the beginning of his response refers to the Georgetown game. The Orioles game is documented on his calendar; he attended it in person with a number of his classmates.

He claims that in both cases his awareness of the victor was impaired not by drunkenness but by distraction. This is a central point that Kavanaugh reiterated repeatedly: He had no issues with drinking to the point of forgetting. If he did have such issues, of course, it would undercut his assertion that he can say with certainty that the alleged attack on Ford didn’t happen.

So he's left in a position of twice suggesting that he didn't know who won the sports events because he was simply having too much fun with his friends. It's an iffy excuse in the abstract, but in context it's obviously untrue.

Why? Another example:

Whitehouse: "Let’s look at, ‘Beach Week Ralph Club — Biggest Contributor,’ what does the word Ralph mean in that?
Kavanaugh: “That probably refers to throwing up. I’m known to have a weak stomach and I always have. In fact, the last time I was here, you asked me about having ketchup on spaghetti. I always have had a weak stomach. ... I got a weak stomach, whether it’s with beer or with spicy food or anything.”

Beach Week was and is known as an event focused on having fun and drinking. Kavanaugh is suggesting that the “Ralph Club” is because he vomited a lot — but that this had more to do with his constitution than his drinking.

Over and over, Kavanaugh dismisses the yearbook entries as being unrelated to his drinking. But he wasn’t asked about other entries, including “Keg City Club (Treasurer) — 100 Kegs or Bust.” It’s hard to think that this is about anything other than beer. So either his yearbook entry is littered with repeated references to drinking, being sick from drinking and forgetting things because of drinking — or each has an innocent explanation that doesn’t jibe with the most natural understanding of the term.

Update: On CNN Thursday night, a classmate of Kavanaugh’s at Yale named Lynne Brookes told “Cuomo Primetime” host Chris Cuomo that “there had to be a number of nights where he could not remember” his actions after drinking heavily. Brookes said she could “almost guarantee” that this had happened.

Sen. Kamala Harris (D-Calif.): "Judge Kavanaugh, have you taken a professionally administered polygraph test, as it relates to this issue?"
Kavanaugh: “Of course, those are not admissible in federal court, but I’ll do whatever the committee wants, they’re not admissible in federal court because they’re not reliable.”

Kavanaugh's presentation of the effectiveness of polygraph tests is accurate. But it's worth noting that this hasn't always been his position.

“As the Government notes,” he wrote in a 2016 decision, “law enforcement agencies use polygraphs to test the credibility of witnesses and criminal defendants. Those agencies also use polygraphs to ‘screen applicants for security clearances so that they may be deemed suitable for work in critical law enforcement, defense, and intelligence collection roles.’”

“The Government has satisfactorily explained how polygraph examinations serve law enforcement purposes,” he summarized.