Reckless Disregard For the Truth (Gwen Moritz Editor’s Note)

This column was prepared for press on Thursday, the day U.S. Appeals Court Judge Brett Kavanaugh and his accuser, Christine Blasey Ford, were scheduled to give sworn testimony to the Senate Judiciary Committee. By the time you are reading it, dog years later in Trump Administration Time, there’s no telling what the status of his nomination for the U.S. Supreme Court will be.

But a secondary plot emerged from Ford’s claim that Kavanaugh attempted to rape her at a teenage house party that I find more fascinating than — let’s face it — yet another tale of sexual abuse untold for so long that it’s nigh-impossible to verify or debunk. This part of the story is not in question, nor is the identity of the primary perpetrator.

Ford, now a 51-year-old college professor in California, agreed to allow the Washington Post to identify her in a story that would appear on its website on Sunday, Sept. 16, and in print the next day. The Post informed the White House of the upcoming story that Sunday morning, in time for a response to be included in the story.

Within 90 minutes, a political operative named Ed Whelan, president of a conservative think tank in Washington, was perusing Ford’s profile on LinkedIn. The White House denies giving Ford’s name to Whelan — it would have been perfectly fine to do so — but some well-connected person clearly did.

Two days later, on Tuesday, Whelan began teasing his Twitter followers with a prediction that Kavanaugh would be “clearly vindicated” by the emergence of “compelling evidence” in support of his “categorical denial.”

On Thursday evening, Sept. 20, Whelan dropped his bombshell: a thread of connected tweets positing what’s known in law enforcement as a SODDI defense — Some Other Dude Did It. The mistaken identity theory had been posed by several commentators as a reasonable way to square Ford’s vivid memory with Kavanaugh’s categorical denial.

But Whelan wasn’t content to provide a graceful way out. Instead he used Google maps and childhood street addresses to zero in on an alternate suspect, a schoolmate of Kavanaugh’s whom he identified by name and photo.

I was gobsmacked. I certainly don’t have a Harvard Law diploma like Whelan, but I know defamation when I see it. You don’t suggest in a public forum that a living person even might have committed a crime without darn good sourcing — a police report, an indictment, a sworn affidavit, something. I’m not even going to name him in this non-defamatory context.

Whelan’s legal training eventually seemed to kick in — concepts like “malice aforethought” and “reckless disregard for the truth.” Naming the alternate suspect, he said, did not mean he was implying that the classmate “or anyone else committed the sexual assault that Ford alleges.” But what else could it mean? What else could a reader conclude?

Through a spokesperson, Ford promptly shot down the theory, saying she knew the other boy and would never have confused him with Kavanaugh.

By the next morning, Whelan seemed to realize what he had done. He took down the tweets and apologized for his “appalling and inexcusable mistake of judgment.” Then he took a leave of absence from the Ethics & Public Policy Center; defaming a private citizen might not be the best reflection of its ethics and policy.

By Friday afternoon, the alternate suspect had enlisted a big-time D.C. law firm to deny — without naming Whelan — “the baseless and irresponsible suggestions and insinuations that he is somehow the subject of Dr. Ford’s allegations.”

While the other dude’s lawyer said there would be no further statement, I hope there’s a civil lawsuit that discovers just who knew so much about the appearance and childhood homes of Brett Kavanaugh’s prep school classmates to help concoct this defamatory theory. Politico reported that a Washington public relations firm helped Whelan, but the sourcing on that story was so thin that I don’t feel comfortable naming the firm. Being accused of assisting Whelan defame the classmate might be defamatory in itself.

If a news organization (rather than a Republican insider) had named an alternate suspect without evidence, it would rightly be described as “fake news.” Ed Whelan and anyone who helped him better hope that the innocent victim of their unprovoked attack isn’t a liberal Democrat who would like to drag this out in court.

Say, is the president still working on his campaign promise to “open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money”?

Email Gwen Moritz, editor of Arkansas Business, at GMoritz@ABPG.com and follow her on Twitter at @gwenmoritz.