Ed Whelan's Batshit Theory Has Been Kicking Around in Right-Wing Circles for a While Now

By Charles Pierce, Esquire

21 September 18

Senate Republicans can't get out of their own way on this matter.

round seven o'clock on Thursday night, the electric Twitter machine entered the red zone and never returned. A guy named Ed Whelan, the head of the Ethics and Public Policy Institute, a relic of the golden first era of wingnut welfare, posited that perhaps Dr. Christine Blasey Ford had been sexually assaulted as a young teenager, but that she had mistaken another Georgetown Prep student for Brett Kavanaugh when she was asked to identify her attacker.

Whelan named the person he speculated had been the actual attacker—Yes, I hear the OJ echoes, too—but we are not going to do that here because Whelan is a libelous gombeen and we are not. His evidence was a strange conglomeration of GPS data, hazy reproductions of yearbook photos, and the floor plans of another house that Whelan claimed better conformed to Ford's original account of the attack.

Now, to be clear, this notion had been kicking around the rightwing circles in which Kavanaugh has spent most of his career for a while now. The Washington Examiner wrote on Tuesday that Kavanaugh himself told Orrin Hatch that he thought Ford might be mistaken about who tried to rape her. Kathleen Parker of the Washington Post wrote an entire column speculating on the possibility. When Whelan's tweet storm broke, Ross Douthat of The New York Times vouched for Whelan's bona fides as a Very Serious Person. And then the roof fell in.

First, Ford, whose lawyers are still in negotiations with the Senate Judiciary Committee regarding her possible appearance before that body, categorically rejected the possibility that she was mistaken about who tried to rape her. From the Washington Post:

Ed Whelan, a former clerk to the late justice Antonin Scalia and president of the Ethics and Public Policy Center, pointed to floor plans, online photographs and other information to suggest a location for the house party in suburban Maryland that Ford described. He also named and posted photographs of the classmate he suggested could be responsible. Ford dismissed Whelan’s theory in a statement late Thursday: “I knew them both, and socialized with” the other classmate, Ford said, adding that she had once visited him in the hospital. “There is zero chance that I would confuse them.”

Republicans on Capitol Hill and White House officials immediately sought to distance themselves from Whelan’s claims and said they were not aware of his plans to identify the former classmate, now a middle school teacher, who could not be reached for comment and did not answer the door at his house Thursday night.

As the night went on, it was discovered—by Josh Marshall, I believe—that the guy Whelan had proposed as a possible Kavanaugh doppelgänger had been one of the people who signed a letter supporting his nomination and vouching for his estimable character. This was embarrassing enough, but then it became apparent that Whelan wasn't simply a rogue blogger on a spree. Again, from the Post:

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.

If Kavanaugh played any role at all in concocting this fairy tale, not only should he not be confirmed as an associate justice of the Supreme Court, but also he probably should lose the job on the appeals bench that he already has. That would be the entire ballgame, not least because it would open up (again) the work that he did in a purely political capacity during the second Bush administration, which the Republicans on the Judiciary Committee and the White House have been fighting ferociously to bury. It would lead one to the inescapable conclusion that Kavanaugh is and always has been a conservative true-believer and that any of his attempts at pretending otherwise in his testimony were as fanciful as whistling fish.

The larger story is that the Senate Republicans—who, by not calling a committee vote on Thursday already now have delayed the confirmation, which they swore up and down they wouldn't do—can't get out of their own way on this matter now. Something is buried in those documents, or in the memory of witnesses, that is giving the majority party pause. Dr. Ford has them running scared, or the nominee does.

Why Trump Is Unready to Face Mueller

By Abigail Tracy, Vanity Fair

21 September 18

Legal experts say there should be at least 15 to 20 investigators working on Trump’s defense. Instead, the president’s team is desperately understaffed and seemingly unprepared to face the special counsel. “It seems though that there really isn’t an appreciation for the seriousness of the potential problem and the amount of coordination and work that has to be done,” says one attorney. “There are very significant legal and political threats to the president and those around him.”

he sexual assault accusation shadowing Brett Kavanaugh’s nomination to the Supreme Court has consumed the White House this week, temporarily distracting from Donald Trump’s own hair-raising legal troubles. But the Mueller investigation, immune to the churn of another chaotic news cycle, continues apace. Last Friday, Washington was convulsed by the news that Paul Manafort had agreed to cooperate with the Justice Department probe and that Michael Cohen, as my colleague Emily Jane Fox reported, has also begun to talk. Days later, in a move that seemed anything but coincidental, the special counsel’s office filed court documents clearing the way for a judge to sentence Michael Flynn.

It is curious, then, that the White House isn’t acting troubled at all. “We’ve talked to their side,” Trump’s personal lawyer, Rudy Giuliani, told The Washington Post, shrugging off the fact that Manafort—Trump’s former campaign manager, who was present at an infamous 2016 meeting with a host of Kremlin intermediaries peddling dirt on Clinton, and who Trump had called “brave” for refusing to break—is now spilling his guts for a reduced sentence. “The statement is, there is nothing that is adverse to the president, the Trump family, the Trump campaign.”

For veterans of the D.C. bar, however, Mueller’s most recent victories don’t look like “nothing”—and they can’t help but rubberneck at the White House’s bewildering response. On the one hand, Giuliani’s primary goal appears to be winning a public-relations battle to tar the Justice Department and F.B.I. as corrupt. He has repeatedly referenced D.O.J. guidance that says a sitting president cannot be indicted, only impeached by Congress. At the same time, explained Ross Garber, a professor at Tulane Law School, Giuliani and his colleagues seem to be discounting the many other ways in which Mueller could upend Trump’s life. “Rudy has suggested that he sees impeachment as the only threat here, [but] I don’t think that is even close to being true,” Garber told me. “There are very significant legal and political threats to the president and those around him.” The Mueller probe, for instance, has already birthed multiple parallel investigations into Trump’s businesses and associates in New York, where the president’s pardon power is limited. And then there are the dozens of investigations Democrats are likely to launch if they retake the U.S. House of Representatives in November. “One of the biggest issues here is there is no one point [of legal vulnerability]. The president is now fighting battles on several fronts, and they will no doubt be more fronts opened up,” Garber added. “This isn’t anywhere close to being over.”

Making matters worse is the dilapidated state of Trump’s personal legal defense. The New York Times, citing interviews with more than a dozen individuals close to Trump, pinned much of the blame on Trump’s former attorney John Dowd:

Regardless of whether another lawyer would have fared better, it seems clear that Trump’s legal team is in trouble and operating largely in the dark. “The reality is that you have got to get to exactly what happened,” said Andrew Hall, who represented former Richard Nixon adviser John Ehrlichman during the Watergate scandal. “You don’t know what happened and then you don’t know what version is being told because like all other things, no two witnesses see the exact same event exactly the same way.” During the Watergate scandal, the best thing you could do is “you get in and you keep digging and digging and digging,” he explained. “You are never going to know what the prosecutors know or not but actually you want to know more than what they know. You want to find out what everybody has said about your client and where that fits in the big picture.”

Garber, who also serves as a criminal defense attorney, concurred. “It seems though that there really isn’t an appreciation for the seriousness of the potential problem and the amount of coordination and work that has to be done,” he said. “And ultimately it is the client who controls that. It is the client who controls who the lawyers are and how many there are and at the end of the day, how they work together—or how they don’t.”

Of course, collating the testimony of dozens of witnesses—all of whom may be fearful of their own legal exposure—is no easy task. “Every one of these witnesses need private, retained counsel—every single one,” Hall told me, noting that Dowd’s ability to communicate with witnesses would have been limited by tampering laws. “They are government employees, they need to have lawyers and those lawyers need to coordinate with other lawyers that are representing other witnesses,” he said. “You have to have each one of these witnesses basically feel safe that they have somebody only in their camp and that if they are about to do something harmful to the president, then the president’s lawyer needs to find it out but it can’t be tampering with evidence—there is a big difference. That’s what gets you into trouble, the tampering and the cover-up.”

That process has been made all the more difficult by the rapid turnover within Trump’s team. Dowd and Ty Cobb, who formerly represented the White House in the Russia probe, reportedly pushed for cooperation with Mueller, betting that he would be exonerated. Other members of Trumpworld strenuously disagreed: former White House chief strategist Steve Bannon told the Times that Trump “finds himself in a legal mess today because of their incompetence.” Since then, Emmet Flood, a veteran of the Bill Clinton impeachment proceedings, is said to have taken a less cooperative approach to Mueller and reportedly blocked Chief of Staff John Kelly from speaking with the special counsel.

The result, as Hall put it to me, has been a patchwork legal defense without any unifying theory of the case. “They seem to have a lot of agendas but no strategy so far has been forthcoming.” (Another Washington defense attorney disagreed, arguing that Mueller would likely have successfully subpoenaed all the information he needed anyway.)

The graver mistake, according to legal experts I spoke with, is that the Trump team underestimated the Mueller threat and failed to staff up in the face of it. “I have been surprised by the apparent small size of the legal team representing the White House and the president and other witnesses,” Garber told me. “In past investigations of the White House under other administrations, the legal teams were quite large and well-resourced and even in much less significant cases, you see legal teams with better resources. . . . This is a complicated investigation.” Hall echoed the sentiment, noting that beyond the personal lawyers for Trump and other witnesses, there should be a team of 15 to 20 investigators either working for Trump in a personal capacity or the Republican National Committee trying to glean as much information as Mueller.

If the Trump team has, in fact, failed to do a deep dive into what witnesses know and what they might spill to Mueller, it might be too late to make up lost ground. As Garber explained, getting information from witnesses “gets more complicated because typically people move from cooperating together to splintering off and some becoming cooperators for the government . . . at the point that somebody becomes a cooperator for the government, the flow of information back to folks that are not cooperating with the government generally ceases.”