September 21, 2018

Judiciary Committee Continues Effort to Accommodate Testimony from Dr. Ford Next Week

WASHINGTON – The Senate Judiciary Committee earlier today offered to move next week’s hearing to receive testimony from Dr. Christine Blasey Ford and Judge Brett Kavanaugh to Wednesday, in order to accommodate one of several requests made by Ford’s legal team. The Committee also offered to accommodate certain other terms while respecting fairness, due process and the senators’ ability to fulfill their constitutional duties.
 
Chairman Grassley issued the following statement:
 
“Despite the fact that the July 30th letter remains hidden, my committee has been investigating the allegations and has heard from multiple witnesses since Sunday. Ms. Katz has discussed Dr. Ford’s allegations in numerous media interviews and said on TV Monday morning that Dr. Ford wants to share her account with the Senate Judiciary Committee. It’s Friday night and nothing’s been agreed to despite our extensive efforts to make testimony possible,” Grassley said. “I’m extending the deadline for response yet again to 10 o’clock this evening. I’m providing a notice of a vote to occur Monday in the event that Dr. Ford’s attorneys don’t respond or Dr. Ford decides not to testify. In the event that we can come to a reasonable resolution as I’ve been seeking all week, then I will postpone the committee vote to accommodate her testimony. We cannot continue to delay.”
 
The chairman issued a notice of a committee executive business meeting, at which the committee can vote on the nomination of Judge Brett M. Kavanaugh to be an Associate Justice on the Supreme Court of the United States. The official notice can be found below.
 
In addition to the delayed hearing date, the committee has also agreed to certain hearing logistics requests and to assist in coordinating security for the hearing. The Committee did not agree to a number of demands regarding witness numbers and speaking orders, as the committee does not accept witness or subpoena requests from other witnesses as a condition of testimony.  As a fundamental matter of fairness and due process, Dr. Ford would provide her testimony containing the allegations and Judge Kavanaugh would be able to respond.  The Committee also will determine who will conduct the questioning.
 
“Consistent with our sincere desire to hear Dr. Ford’s testimony in her preferred setting—while, at the same time, respecting fundamental notions of due process and Committee practice—we are willing to meet you halfway,” a proposal from Committee staff said.
 
“This Committee has been extremely accommodating to your client. We want to hear Dr. Ford’s testimony and are prepared to accommodate many of your demands, including further delaying a hearing that is currently scheduled for Monday. We are unwilling to accommodate your unreasonable demands. Outside counsel may not dictate the terms under which Committee business will be conducted.”
 
Full text of the proposal from earlier today follows:
 
Dear Ms. Katz and Ms. Banks: 
 
I am writing in response to your conditions under which your client, Dr. Christine Blasey Ford, is willing to testify as to her allegations of sexual assault by Judge Brett Kavanaugh while the two individuals were in high school more than 35 years ago. On behalf of Chairman Chuck Grassley, I want to reiterate that the Senate Judiciary Committee considers these serious allegations and wants to honor Dr. Ford’s request to testify. We are committed to providing a secure and respectful setting for her testimony. The Chairman fully agrees with Dr. Ford that we cannot have another “media circus.” The Chairman has offered the ability for Dr. Ford to testify in an open session, a closed session, a public staff interview, and a private staff interview. The Chairman is even willing to fly female staff investigators to meet Dr. Ford and you in California, or anywhere else, to obtain Dr. Ford’s testimony.
 
Sometime before last Sunday, September 16, your client described her allegations to a reporter for the Washington Post, which published the allegations that Sunday. This was the first time that the Chairman or his staff learned of Dr. Ford’s identity. Dr. Ford had made these allegations privately to her elected representatives, including Senator Feinstein, who was aware of these allegations since July. Neither Senator Feinstein nor her staff asked Judge Kavanaugh about these allegations despite having numerous opportunities to do so, including in a closed-door meeting between the senator and the nominee, during confidential phone calls with Judge Kavanaugh regarding his background, during three days and more than 32 hours of testimony at his public confirmation hearing two weeks ago, during a closed session of that hearing when sensitive information could be discussed—which Senator Feinstein did not attend—or when senators issued Judge Kavanaugh nearly 1,300 written questions after his confirmation hearing, more written questions submitted than were submitted to all previous Supreme Court nominees combined. Senator Feinstein also could have referred these allegations anonymously and confidentially to the FBI when she was made aware of them. That would have protected her anonymity, as Dr. Ford requested.
 
These actions were profoundly unfair to both parties. Judge Kavanaugh has unequivocally denied Dr. Ford’s allegations. He should have been given the opportunity to say so directly to Senator Feinstein had he been made aware of serious allegations against him. And 64 other senators met with Judge Kavanaugh before his hearing. If Senator Feinstein had made them aware of these serious allegations, those senators could have also questioned Judge Kavanaugh. Dr. Ford requested that her allegations remain confidential. Instead, this confidential information leaked due to the actions of Democratic offices on the Judiciary Committee, and the allegations are now in the public arena, contrary to Dr. Ford’s wishes. The media circus and eleventh-hour intrigue could have been avoided if my colleagues and their staff treated these allegations seriously and responsibly. I’m afraid their actions have undermined the dignity of these proceedings.
 
Chairman Grassley, when he became aware of Dr. Ford’s allegations last Sunday, instructed his staff to begin an immediate investigation. The next day, Ms. Katz went on morning shows asking that the Committee hold a public hearing so that Dr. Ford may offer her testimony. The Committee immediately honored that request, scheduling a hearing for one week later. Chairman Grassley informed you that the hearing could be public or private and that Dr. Ford could also choose to have a public or private staff interview with Democratic and Republican staff.
 
The next day, you withdrew your request for a hearing until the FBI conducted an investigation. The FBI, however, issued a statement that it considered the matter closed. The Senate does not have the authority to direct an Executive Branch department to conduct further investigation. Moreover, the Senate has a constitutional obligation to conduct its own investigations. Chairman Grassley’s staff has tried to work with Democratic staff to conduct an investigation, but they have so far refused to participate. On Monday, September 17, Chairman Grassley’s staff interviewed Judge Kavanaugh under penalty of felony. Democratic staff was invited to participate, and they could have asked any question they wanted to, but they declined. Judge Kavanaugh was forthright and emphatic in his testimony. He fully answered all questions. Chairman Grassley’s staff also contacted three alleged witnesses named by Dr. Ford and obtained two statements under penalty of perjury. These witnesses directly contradict Professor Ford’s allegations against Judge Kavanaugh.
 
Yesterday, you issued ten demands to us regarding the conditions under which Dr. Ford is willing to testify. Consistent with our sincere desire to hear Dr. Ford’s testimony in her preferred setting—while, at the same time, respecting fundamental notions of due process and Committee practice—we are willing to meet you halfway. You demanded that we not hold the hearing on Monday because Dr. Ford needs time to prepare her testimony. Because Dr. Ford’s testimony will concern only her personal knowledge of events, events which she already described to the Washington Post, holding a hearing more than one week after she aired these allegations is more than reasonable.  We will nevertheless reschedule the hearing for later in the week, as you requested. The Committee will take Dr. Ford’s and Judge Kavanaugh’s testimony on Wednesday, September 26. 
 
We deplore that Dr. Ford has faced serious threats and harassment over the past week, and we will make every effort to guarantee her safety. At the same time, Judge Kavanaugh and his family, including his two young daughters, have also faced serious death threats and vicious assaults as a result of these allegations. And they’re getting worse each day. Judge Kavanaugh unequivocally and categorically denied these allegations. He was willing to testify last week after the allegations were made publicly, and he already accepted our invitation to testify on Monday. It is not fair to him or to his family to allow this situation to continue without a resolution and without an opportunity for him to clear his name. Holding the hearing on Wednesday honors your request for a later hearing date while recognizing that Judge Kavanaugh is entitled to due process. It is the fairest option for both parties.
 
We also accept some of your other demands. You demanded that Judge Kavanaugh not be in the hearing room during Dr. Ford’s testimony. We have no objection to that.
 
You demanded that only one camera be permitted in the hearing room and that there be limited press access. We have no objection to that.
 
You demanded that the number of rounds and minutes per round of questions be equal for all senators. We have no objection to that.
 
You demanded that Dr. Ford be given adequate breaks during her testimony. We of course have no objection to that.
 
You also expressed concerns about Dr. Ford’s safety and that the Senate provide adequate security. This, of course, we will do. The Capitol Police offers more than adequate security. The Senate hosts the President, Vice President, Cabinet secretaries, heads of state, and other prominent public figures all the time with the necessary precautions.
 
Some of your other demands, however, are unreasonable and we are unable to accommodate them. You demanded that Judge Kavanaugh be the first person to testify. Accommodating this demand would be an affront to fundamental notions of due process. In the United States, an individual accused of a crime is entitled to a presumption of innocence. And, further, the accused has the right to respond to allegations that are made about him. Judge Kavanaugh cannot be expected to respond to allegations that have been made to the press. He is entitled to hear the full, detailed testimony of Dr. Ford before he testifies. You have indicated that Dr. Ford has allegations that she would like to make in public and under oath. She will have the opportunity to do so before we give Judge Kavanaugh the opportunity to respond.
 
You also demanded that only senators be permitted to ask questions of the witnesses. We are also unable to accommodate this demand. There is no rule of the Senate or the Committee that precludes staff attorneys from asking witnesses questions. We reserve the option to have female staff attorneys, who are sensitive to the particulars of Dr. Ford’s allegations and are experienced investigators, question both witnesses. We believe this will allow for informed questioning, will generate the most insightful testimony, and will help de-politicize the hearing.
 
You demanded that the Committee issue subpoenas for the testimony of Mark Judge and other unidentified witnesses. The Committee is unable to accommodate this demand. The Committee does not take subpoena requests from witnesses as a condition of their testimony. You went on television earlier this week and said Dr. Ford wants the chance to tell her story in public and under oath. This is the opportunity we have given her. We don’t need to subpoena additional witnesses to do that.
 
You demanded that the Committee call additional witnesses that Dr. Ford requests. We are unable to accommodate this demand. The Committee does not take witness requests from other witnesses. Mark Judge and one other alleged witness to the events Dr. Ford has described have already denied the allegations under penalty of felony to the Committee. We can obtain additional testimony through staff interviews, obtaining statements, or other means that are subject to penalties of felony, if necessary.
 
This Committee has been extremely accommodating to your client. We want to hear Dr. Ford’s testimony and are prepared to accommodate many of your demands, including further delaying a hearing that is currently scheduled for Monday. We are unwilling to accommodate your unreasonable demands. Outside counsel may not dictate the terms under which Committee business will be conducted.
 
Please respond by 5:00 pm to accept the invitation for Dr. Ford to testify on Wednesday according to the terms outlined above. We will have to issue various Committee notices soon after, so timeliness is extremely important.
 
The notice for committee executive business meeting on Monday, September 24 follows.
 
September 21, 2018
 
NOTICE OF COMMITTEE EXECUTIVE BUSINESS MEETING
 
An Executive Business Meeting has been scheduled by the Committee on the Judiciary for Monday, September 24, 2018 at 10:00 a.m., in Room 226 of the Dirksen Senate Office Building.
 
By order of the Chairman.
 
AGENDA
Senate Committee on the Judiciary
Dirksen Senate Office Building, Room 226
Monday, September 24, 2018 at 10:00 a.m.

I. Nominees

Brett M. Kavanaugh, to be an Associate Justice of the Supreme Court of the United States

Jonathan A. Kobes, to be United States Circuit Judge for the Eighth Circuit
 
Kenneth D. Bell, to be United States District Judge for the Western District of North Carolina

Stephanie A. Gallagher, to be United States District Judge for the District of Maryland

Mary S. McElroy, to be United States District Judge for the District of Rhode Island

Carl J. Nichols, to be United States District Judge for the District of Columbia
 
John M. O'Connor, to be United States District Judge for the Northern, Eastern and Western Districts of Oklahoma
 
Martha Maria Pacold, to be United States District Judge for the Northern District of Illinois
 
Mary M. Rowland, to be United States District Judge for the Northern District of Illinois
 
Steven C. Seeger, to be United States District Judge for the Northern District of Illinois

II. Bills

S.2785, DETER Act (Durbin, Graham)

S. 3178, Justice for Victims of Lynching Act of 2018 (Harris, Scott, Feinstein, Leahy, Durbin, Whitehouse, Klobuchar, Coons, Blumenthal, Hirono, Booker)
 

-30-