Last weekend, The New York Times published a teaser for the book The Education of Brett Kavanaugh: An Investigation by Robin Pogrebin and Kate Kelly. The article rehashed allegations made against Justice Kavanaugh by Deborah Ramirez and included a “new” allegation from a man named Max Stier, who claimed that Kavanaugh pushed his genitalia into the hands of an unspecified female student.
By arguing over whether or not the allegations against Kavanaugh are “credible,” French and others are acceding to the frame set by Democrats.
The next day, the Times published a staggering correction: the alleged “victim” in Stier’s tale “declined to be interviewed” and friends of hers said that “she does not recall the incident.” Nevertheless, Democrats and their media bulldogs used Kelly and Pogrebin’s piece to attack Kavanaugh and delegitimize the Supreme Court.
CNN analyst Jeffrey Toobin tweeted that “[f]orty percent of the Republican appointees to the Supreme Court had been credibly accused of sexual misconduct.” Other prominent progressives like CNN analyst Keith Boykin and former ThinkProgress editor-in-chief Judd Legum echoed Toobin’s language. Multiple presidential candidates, including Sens. Kamala Harris (D-CA) and Cory Booker (D-NJ), used the allegations to push for Kavanaugh’s impeachment.
Key to this power move has been a clever yet innocuous rhetorical device: the word “credible.” A number of conservatives, including David French, have objected to this characterization, on the grounds that the allegations against Justice Kavanaugh are not, in fact, credible.
But this approach has serious flaws. By arguing over whether or not the allegations against Kavanaugh are “credible,” French and others are acceding to the frame set by Democrats; namely, that “credibility” is an objective metric through which to evaluate allegations.
THE MAGIC WORD
For progressives, “credible” is a modifier with magic powers. It is a signal that for a particular allegation of wrongdoing, the burden of proof should be reversed.
But who gets to determine what constitutes a “credible” allegation? Well, progressives, and media elites, of course.
Mere, unqualified “allegations” are subject to the normal standard of proof—the person offering the allegation is expected to provide evidence, and the target of the allegation has no corresponding obligation to respond. But a “credible” allegation? That is not something good people interrogate; accepting “credible” allegations is a mark of reasonableness. If someone is unfortunate enough to be the target of a “credible” accusation of wrongdoing, they are in trouble. They must provide evidence that “exonerates” them; otherwise, they are presumed guilty.
But who gets to determine what constitutes a “credible” allegation? Well, progressives, and media elites, of course. If the New York Times publishes an allegation, that allegation is imbued with “credibility,” and the burden of proof shifts. If, however, a similar allegation is published on Power Line or the Washington Examiner, it’s a mere allegation; interrogating the potential bad faith of the proponents of the accusation is the default move.
This may seem bizarre, but it isn’t historically novel. In many societies throughout history, allegations were treated with different levels of seriousness, as a matter of law, depending on who made the allegation. In Ancient Rome, for example, the testimony of a slave was not accepted unless the slave had been tortured.
In the United States, racial privilege determined the presumptive validity of testimony, at least through the end of Jim Crow. Last month marked 64 years since the tragic death of Emmett Till. A 14-year old African American from Chicago, Till was brutally murdered in 1955 after a white woman, Carolyn Bryant, falsely accused him of harassment.
Till’s was just one amongst hundreds of racially-motivated lynchings during the Jim Crow era. But what were these lynchings if not extrajudicial executions based on “credible allegations” made by white women? According to Chelsea Hale and Meghan Matt, writing for the ABA, “[i]f the accused was African American and the victim white, the jury was entitled to draw the inference, based on race alone, that he intended to rape her.” Indeed, one of the great pieces of American literature—To Kill A Mockingbird—was, in some sense, a critique of the very notion of a “credible allegation.”
Even today, in Saudi Arabia, the testimony of women in certain types of cases is weighted at half that of a man’s testimony, and the testimony of anyone who is not an observant Wahhabi Muslim can be disregarded by Saudi judges.
And today, in the United States, allegations made by Democrats (and published by their media apparatus) are “credible”; allegations made by Republicans are not.
THE PRIVILEGE OF BEING A DEMOCRAT
These days, a Democratic party affiliation affords you a whole lot of privilege. Take Joy Reid, for example: the MSNBC host penned a litany of disparaging remarks targeting the LGBTQ community in the 2000s on her public blog. After conservatives drew attention to her posts, Reid asserted—without evidence—that the posts, which have long since been documented and archived, were the result of a hack. The fictional “hacker” was of course never found, and yet Reid retained her show on MSNBC.
This notion that a Republican must “exonerate” themselves is a natural consequence of the artificial weight that “credible” allegations carry.
Alexandria Ocasio-Cortez should be in hot water over allegations that her congressional campaign violated campaign finance law—but the claim has been dismissed out of hand by the mainstream media. Soliciting commentary from “experts,” Business Insider, among other publications, weighed in on the National Legal and Policy Center’s FEC complaints against AOC, which alleges her team funneled PAC money through a corporation to evade campaign finance laws. Their verdict? “Overblown.”
Ilhan Omar should be the subject of intense media scrutiny over her alleged infidelity with Tim Mynett, a progressive consultant with whom she is alleged to have given more than $250,000 in consulting fees and travel expenses. Details of their relationship came to light after Mynett’s wife, Beth, submitted divorce papers claiming her husband informed her of his affair with Omar. And yet the mainstream media has little interest in covering these allegations, despite how seemingly “credible” they are.
Conversely, with Republicans, the burden of proof is inverted: most accusations against them, no matter how thin the evidence, are promptly deemed “credible,” and the accused is forced to go on the defensive.
Justice Kavanaugh is the most obvious example; even though there is still nothing to corroborate any of the allegations against him, they are referred to as credible, with multiple presidential candidates calling for his impeachment.
Similarly, one can use this heuristic of “credibility” to evaluate the charge that President Trump obstructed justice. In his final report, Robert Mueller declined to recommend that the President be indicted, instead asserting that he could not “exonerate” the President.
This notion that a Republican must “exonerate” themselves is a natural consequence of the artificial weight that “credible” allegations carry. In our system, prosecutors do not “exonerate” defendants; rather, they must prove allegations against defendants beyond a reasonable doubt. But for both President Trump and Justice Kavanaugh, legislators, executive branch officials, and the media subtly shifted the burden of proof.
And remember Leif Olson? The policy adviser in the Department of Labor’s wage and hour division was forced to resign early this month after Bloomberg Law’s Ben Penn published a hit piece declaring Olson an anti-semite when Olson was quite clearly mocking anti-semitism. After the mistake was pointed out to Penn, from multiple sources, the journalist doubled down on his original coverage—and seemed to be of the opinion that even if Olson was acquitted of guilt in this instance, there was something noble about using false allegations to force his resignation.
Lost in all of this is that Olson was part of a team of political appointees tasked with the heavy lift of drafting wage-hour regulations that are high priorities for Trump White House, business community. They're now down one adviser. https://t.co/PZbIScDHqe
— Ben Penn (@benjaminpenn) September 3, 2019
Because the allegation was made by a reporter at Bloomberg, it was imbued with that ephemeral “credibility,” so much so that Olson’s resignation was forced very shortly after Penn’s “report” was published. Thankfully, Olson has since been reinstated after acting Secretary Patrick Pizzella “personally made this decision after carefully reviewing all the facts and circumstances.”
The double standard is everywhere. But it’s just not enough to complain about it.
ASSUME YOUR OPPONENTS ARE ACTING IN BAD FAITH
Conservatives should collectively enforce a presumption that allegations made by progressives are “incredible.” Democrats have an internal mechanism for preventing conservative publications from being treated as “credible”: they prima facie dismiss articles coming from right-wing outlets.
Conservatives should collectively enforce a presumption that allegations made by progressives are “incredible.”
Republicans should return the favor with the New York Times and the Washington Post. President Trump has it right: we should simply presume that the New York Times is lying when it discusses a conservative, until evidence shows us otherwise.
Just Out: “Kavanaugh accuser doesn’t recall incident.” @foxandfriends DO YOU BELIEVE WHAT THESE HORRIBLE PEOPLE WILL DO OR SAY. They are looking to destroy, and influence his opinions – but played the game badly. They should be sued!
— Donald J. Trump (@realDonaldTrump) September 16, 2019
Moreover, every time there is an accusation against a prominent Democrat, Republicans should use the word “credibly” liberally, and demand that Democratic officials resign unless evidence “exonerates” them. Too often in wars over framing, Republicans only object to Democratic semantic moves, without playing any kind of offense. Aggressively using Democratic labels is a way of making the enemy live up to its own book of rules.
We can no longer afford to be held to different standards. Democrats are politicizing every institution they control. It’s imperative that Republicans adopt an adversarial posture; that means presuming bad faith from our political opponents.
Because we are not at peace.