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Why Perjury Matters in the Judicial Branch

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If there is one thing that is plainly clear, when it comes to the executive and legislative branches of the federal government, lying is just no big deal. In fact, lying has become such a core part of the presidency and the Congress that Americans have come to accept that lying is just an inherent part of government itself.

Nonetheless, there is still a modicum of prestige and respect for the judicial branch of the federal government. Part of the reason for that is the importance that truth plays in the judicial process. If the day ever comes when lying in the civil and criminal judicial process becomes as accepted as it is in the executive and legislative branches, that will be the day when the entire federal government can be considered one great big cesspool, or swamp, of corruption.

This is why the possibility that Trump’s Supreme Court nominee Brett Kavanaugh might have committed perjury — or false testimony under oath — at the Senate Judiciary Committee hearing is so important. If he actually did knowingly and intentionally lie at that hearing, it will mean that a member of the U.S. Supreme Court will have committed perjury. That will be one heckuva message, especially for students in every law school across the land.

I find it absolutely phenomenal that more than 500 law professors across the United States have now signed a letter opposing Kavanaugh’s appointment. If that has happened in the past, I am not aware of it. While their reasons for opposing the nomination are based on Kavanaugh’s failure to “display the impartiality and judicial temperament requisite to sit on the highest court of our land,” rather than the possibility that Kavanaugh has committed perjury, there can be no doubt that a big part of their concern is how law students across the land would perceive Kavanaugh’s appointment to the Supreme Court.

The letter from those 500+ law professors comes on top of the decisions by the American Bar Association and the dean of Yale law school, where Kavanaugh got his law degree, to withdraw their support for Kavanaugh’s nomination immediately following the hearing, pending an extensive investigation.

Kavanaugh supporters are pointing to a post-hearing report by the so-called expert prosecutor from New Mexico, Rachel Mitchell, in which she explains why she would never prosecute Kavanaugh based on Christine Ford’s testimony. Mitchell’s report further reveals the utter incompetence of this particular attorney.

First of all, it would be virtually impossible to find a more incompetent cross-examination of a witness than Mitchell’s cross-examination of Christine Ford. In fact, even the Fox News commentators, who are widely known far and wide for being “fair and balanced,” were commenting live during the hearing about the abysmally poor job that Mitchell was doing with her cross-examination of Ford. Indeed, while Mitchell was cross-examining Kavanaugh, she was effectively fired, with the Republican members of the Judiciary Committee, who had hired her, taking over the questioning of Kavanaugh.

Mitchell’s post-hearing report only accentuates her utter incompetence. What she obviously does not realize is that the nomination process has absolutely nothing to do with a criminal prosecution. Even if Kavanaugh’s nomination is denied, he’s not going to jail. He instead continues in his cush lifetime job at the federal court of appeals. Thus, whether Mitchell would prosecute Kavanaugh or not is completely irrelevant to the matter at hand.

The nomination process is a job interview, nothing more, nothing less. Keep in mind that Supreme Court justices, just like everyone else in the federal government, work for us, the American people. We, not they, are the masters. They, not we, are the servants.

In fact, the members of the U.S. Senate are our servants too. Their task is to conduct the job interview and make the final determination on whether to hire Kavanaugh on our behalf.

Kavanaugh is asking us to give him a job on the U.S. Supreme Court. He has to convince us to hire him. If we don’t hire him, that doesn’t mean he goes to jail, like a defendant in a criminal prosecution would. This is what Rachel Mitchell obviously doesn’t get.

Should Kavanaugh’s job application be granted? Should he be chosen to fill the empty seat on the highest court of the land, especially given lots of other qualified candidates?

As far as I am concerned, there are two big obstacles he faces: (1) a very credible woman has provided very credible evidence that he sexually assaulted her when they were both teenagers, which he has denied under oath; and (2) at the Judiciary Committee hearing Kavanaugh delivered very problematic testimony that needs to be fully investigated for the possibility of perjury. A third obstacle is the one that those 500 law professors have presented: that Kavanaugh lacks “the impartiality and judicial temperament requisite to sit on the highest court of our land.” Unfortunately, in their haste to confirm Kavanaugh’s confirmation, Senate Republicans have displayed a remarkable indifference to a full investigation into these matters.

In fact, contrary to what many Kavanaugh supporters are claiming, Christine Ford has no burden to prove that Kavanaugh has sexually assaulted her. She is just a witness. A witness has no burden of proof. Her sole responsibility as a witness is to testify truthfully. It is Kavanaugh that has the burden of convincing us to hire him for this job.

For libertarians, there are problematic aspects of Kavanaugh’s legal background, such as his ardent support of the USA PATRIOT Act, as detailed in an article by Britanny Hunter published yesterday by The Foundation for Economic Education.

Permit me to share with you, the reader, some personal experiences that show how important truth and perjury are — and should be — to members of the legal profession.

I grew up in Laredo, Texas, which is situated on the Texas-Mexico border. The international bridge to Nuevo Laredo, Mexico, is situated in downtown Laredo.

In the 1960s, Laredo was already a major focus for the U.S. government’s war on drugs, which, as every libertarian knows, is one of the most immoral and destructive federal programs in U.S. history.

At that time, Laredo was a major tourist city. Thousands of people would come down to Laredo to get a taste of “Old Mexico” by crossing into Nuevo Laredo for the day. At the time Mexico had an open0border policy for Americans entering Nuevo Laredo. If an American wished to travel into the interior of Mexico, he would need a government-issued tourist visa.

When Americans were returning to Laredo after visiting Nuevo Laredo or other parts of Mexico, they would be stopped on the U.S. side of the border by U.S. border officials. At that point, travelers were subjected to extensive interrogation and complete searches of their vehicles and persons.

(As a digression, this is something that libertarian advocates of border controls often forget — that what they are implicitly supporting with their support of border controls is the authority of government officials to stop people, interrogate them, search their vehicles, and require that they completely undress so that every part of their body can be searched — all without a warrant or probable cause or even a reasonable suspicion that a crime has been committed.)

Many of the people who were being stopped and searched at the bridge were hippies. They could easily be recognized by U.S. officials by their long hair, their manner of extremely casual dress, and their total lack of deference or respect toward federal officials. Upon being stopped and searched, an inordinately large number of hippies were being arrested for illegal possession of marijuana and then socked with extremely long jail sentences.

Among the people arrested at the Laredo bridge for marijuana violations was the noted LSD guru Timothy Leary. Along with his two daughters, Leary had crossed the bridge at Laredo with the intent to spend several months in Mexico working on a book. When he got to the Mexican side of the bridge, he requested the required tourist visas for entering the interior of Mexico. The official told him that because it was nighttime, he would not be able to issue the visas and that Leary and his daughters would have to return in the morning.

Thus, Leary and his daughters turned their vehicle around and headed back across the bridge to Laredo. When they arrived at the U.S. side of the bridge, they were naturally stopped by U.S. border guards. After an extensive search of their vehicle, the border guards ordered at least one (and maybe both) of the daughters to disrobe. The guards found a small snuff box containing half-an-ounce of marijuana in it that one of the daughters had hidden in her panties. Leary and his daughter were charged with possession of marijuana that had been illegally imported and with failure to pay the federal tax on marijuana.

Another digression that you might find mildly interesting: My father, who was a lawyer, was the U.S. magistrate in Laredo at that time. It was a part-time position that enabled him to still maintain a private law practice. The only limitation was that he couldn’t represent federal criminal defendants.

Well, Leary was brought before my father to be arraigned and so that bail could be set. Leary later described my father as “stern” and “relentless.” At 16 years of age, I would have totally agreed with Leary’s assessment of my father.

Leary went to trial, confessed his guilt on the witness stand, and was quickly found guilty by the jury.

The judge in the case was a federal judge named Ben Connally. At that time, Laredo didn’t have its own federal judge. All federal cases would be heard by a visiting judge and Connally was the primary judge who would periodically come to Laredo to preside over cases.

As a teenager, I knew Connally personally.That’s because my parents were friends of his and his wife. Oftentimes, Connally and his wife would come to Laredo during bird-hunting season and we’d all go hunting together.

In fact, if you will permit me another digression: One time, Judge Connally and his wife, my father and mother, and I joined a big party of local hunters who went on a bird hunt at a ranch in Mexico. It was an incredible hunt and the party ended up killing hundreds of white-wing doves.

It was illegal to bring those doves back into the United States. Yet, somehow or another, those doves found themselves in Laredo, nice cleaned and packed in ice, with Judge Connally’s share being delivered to his chambers in the Laredo federal building, no questions asked.

Judge Connally, like most federal judges today, was determined to do his part to win the war on drugs. How would he do that? By meting out enormously long jail sentences to people who were convicted of drug offenses. Like federal judges today, he figured that if he punished people with long drug sentences, that would deter other people from violating drug laws, with his aim being to bring victory in the war on drugs. I can’t help but wonder whether he would be surprised to learn that his tactics didn’t work and that the drug war is still being waged and that federal judges are doing the same thing he was doing more than 50 years ago.

When Leary appeared for sentencing, Judge Connally sentenced him to 30 years in jail. For … one-half ounce … of marijuana. That’s how committed Connally was to winning the war on drugs. (The U.S. Supreme Court later overturned Leary’s convictions.)

One day Judge Connally summoned my father to his office. My father related to me that he said, “Jack, we have a big problem with what is happening at the bridge. Lots of dropsie cases. We need to figure out what to do about it.”

What he was referring to was that when U.S. border agents were stopping hippies at the bridge as they were returning from Mexico, they oftentimes were not finding any drugs. At that point, they would simply take a small stash of marijuana from their pockets and drop it into the car, exclaiming in mock surprise, “Well, look at what we just found!” They would then charge the hippies with marijuana possession.

When the case would come to trial, the federal agents would lie — would commit perjury — in order to get the conviction. If the defendant would deny that the drugs were his and accuse the agent of having planted them, the prosecutor would argue to the jury: “Who are you going to believe — the defendant (a long-haired hippie) or the federal agent (a crew-cut patriot)?

Judge Connally, to his ever-lasting credit, had learned about this practice and was determined to put a stop to it. As much as he was committed to winning the war on drugs, he knew that perjury within the judicial system was not the way to do so and would instead ending up destroying the integrity of the judicial system.

The question is: Does Brett Kavanaugh have that same mindset? If not, should we be hiring him to serve on our Supreme Court?

This post was written by:

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.