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The Brett Kavanaugh perjury controversy, explained by 4 legal scholars

Conclusion? It’s probably not perjury.

Senate Holds Confirmation Hearing For Brett Kavanaugh To Be Supreme Court Justice Chip Somodevilla/Getty Images
Dylan Matthews is a senior correspondent and head writer for Vox's Future Perfect section and has worked at Vox since 2014. He is particularly interested in global health and pandemic prevention, anti-poverty efforts, economic policy and theory, and conflicts about the right way to do philanthropy.

Senate Democrats obviously don’t care much for Supreme Court nominee Brett Kavanaugh, who stands poised to overturn Roe v. Wade, limit affirmative action, weaken environmental regulations, and otherwise undermine liberal priorities once confirmed. But as his confirmation hearings progress and more documents from his time serving in the Bush White House emerge, Senate Democrats are now leveling a more serious charge: perjury.

The first case involves now-federal appeals court Judge William Pryor, whom Trump also considered for the Supreme Court vacancy to which Kavanaugh is being appointed. During his confirmation hearings for the DC Circuit in 2004, Kavanaugh claimed that he was “not involved in handling [Pryor’s] nomination” for Bush (Pryor had been appointed the year prior). He added, “I am familiar generally with Mr. Pryor, but that was not one that I worked on personally.”

But, as my colleague Tara Golshan explains, newly released emails from 2002 and 2003 show that Kavanaugh discussed the vetting process for Pryor with fellow White House aides; in one case, another aide asked Kavanaugh, “How did the Pryor interview go?” and Kavanaugh responded, “Call me.”

Democratic Sens. Dianne Feinstein and Pat Leahy highlighted the contradiction, and while neither used the term “perjury,” the implication that Kavanaugh lied under oath was clear.

Leahy has also highlighted another potential discrepancy, in which Kavanaugh in 2004 claimed he had never seen “any documents that appeared to you to have been drafted or prepared by Democratic staff members of the Senate Judiciary Committee.” At the time, Manuel Miranda, a Republican Senate aide, had improperly obtained and circulated thousands of private Democratic files detailing strategies for opposing Bush’s judicial nominees. Kavanaugh insisted in his 2004 confirmation hearings that he never saw any of the files Miranda obtained, telling Sen. Orrin Hatch, “I was not aware of that matter in any way whatsoever until I learned it in the media.”

However, Leahy has produced an email that Miranda sent to Kavanaugh, among others, passing along some of the improperly obtained files. That makes Kavanaugh’s claim that he was “not aware” that Miranda had obtained Democratic files seem inaccurate, at the very least.

But do Kavanaugh’s inaccurate statements rise to the level of perjury? Did he commit a federal crime? I put the question to several legal scholars, and the reply I received was generally: “no.”

Miriam Baer, law professor, Brooklyn Law School

Neither of these two cases meet the high bar for a perjury prosecution.

The first instance, wherein Kavanaugh said he was “not involved in handling” Pryor’s nomination, isn’t even clearly “false.” The question that precedes it is a lengthy question from Senator Kennedy. One could argue that Kavanaugh thought Kennedy was asking whether Kavanaugh played a major role “in the vetting process” for Pryor, or discussed specific Constitutional doctrines with Pryor prior to Pryor’s nomination (Kennedy mentions Pryor’s reported views of the Supreme Court’s Miranda decision). Thus, Kavanaugh’s answer (“No. I was not involved in handling his nomination”) is truthful insofar as Kavanaugh understood “handling” to mean “in charge” of either vetting the person or shepherding that person’s nomination through the Senate. The fact that Kavanaugh apparently was invited to a meeting (and it is unclear from the email how many other people were invited) doesn’t necessarily demonstrate that Kavanaugh’s statement was untrue, much less that he intentionally lied or misled Senator Kennedy.

I don’t see any lie in [the second case]. Instead, he’s effectively saying, “Based on my own response, I don’t think I realized this was a stolen draft.”

That being said, senators are free to point out inconsistencies in testimony and question a judicial nominee about those perceived inconsistencies. And if the nominee does a poor job explaining such inconsistencies, senators can and should take that into account. But perjury is a serious crime, provable only by evidence that someone intentionally lied under oath. Based on what I have read so far, I cannot imagine any prosecutor pursuing either of these.

Jessica Levinson, law professor, Loyola Law School

Probably not. Perjury is a pretty high standard and it’s not, “We think you lied, this isn’t particularly credible.” It’s, “You willfully lied under oath.” It doesn’t feel totally credible, but we don’t have proof of a willful falsehood.

On the first tweet, being involved in the nomination, I think if you look down lower at the transcript below the part highlighted, he gives himself enough room that it doesn’t clearly rise to the level of perjury. He’s saying, “I know him, I’ve met him, but I wasn’t the point person for that one, I wasn’t in charge.” I think if you look at the overall context, he has a line that he wasn’t involved in the handling. That was probably too direct an assertion, but I don’t think that one rises to the level of perjury.

On the second one about the documents, that one is a little bit more nefarious or troubling, and I think what Senator Leahy said at the end of that thread is where I come down. Is that really credible? It doesn’t sound right to me. But again, does it rise to the high level of perjury? Can you leap over that threshold or cross that hurdle? I don’t think so. I think the second instance is a closer call, but if you look at the context, if you look at his statements, I think he left himself enough room.

In sum, do I think future Justice Kavanaugh perjured himself? I don’t. Do I think he’s been less than forthcoming? Absolutely. Do I think he’s been more troublingly less than forthcoming than previous nominees? I do. Do I think we have less access to documents than we have with previous nominees? Yes. But I don’t think that he perjured himself.

Ciara Torres-Spelliscy, law professor, Stetson University

If federal prosecutors are really going after lying to Congress, that could open up an entirely new front of liability for lots of less than truthful witnesses. I doubt anyone at DOJ would have the moxie to go after Judge Kavanaugh for these statements. Whether as a circuit judge or if he gets elevated to the Supreme Court, the remedy to remove him is through the impeachment process, and I don’t see Congress having the stomach for that either.

Mark Tushnet, law professor, Harvard University

I’d have to know more detail about both what the documents say and about precisely what Kavanaugh said to be able to make a judgment. But “suggests the contrary” would be a rather feeble basis for a perjury charge.

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