Politics

Kavanaugh Can File Defamation Suit on ‘Scurrilous Allegations’

Expert insists the nominee is able to fight back against 'reckless' accusations by 'celebrity lawyers' and media

Image Credit: Brendan Smialowski, Getty Images

Supreme Court nominee Brett Kavanaugh (pictured above) “absolutely” should consider filing a defamation lawsuit against some of the most “scurrilous allegations” against him in his confirmation process, defamation attorney Thomas A. “Tom” Clare said Wednesday night on Fox News’ “The Ingraham Angle.”

“There is so much reckless conduct out there and reckless speech, starting with the accusers, starting with the media repeating these uncorroborated, baseless allegations without knowing whether it’s true or false,” Clare, a partner at Clare Locke LLP, told Fox News host Laura Ingraham.

“It is absolutely reckless — celebrity lawyers that are jumping in front of cameras to repeat this stuff,” Clare added, apparently referring to lawyer Michael Avenatti. “[Kavanaugh] absolutely has recourse. It’s the only thing in our system that he can do, is to pursue a defamation claim.”

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Christine Blasey Ford became the first woman to come forward publicly alleging that Kavanaugh sexually assaulted her 36 years ago during a high school gathering in Maryland. Deborah Ramirez was the second accuser, and Swetnick was the third.

Swetnick wrote in her sworn affidavit that she was raped at one of 10 high school parties in suburban Maryland that she attended in the early 1980s after graduating from high school in 1980, according to The New York Times.

“It gives rise to a defamation claim. And Judge Kavanaugh should absolutely keep those options on the table.”

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She alleged that Kavanaugh and Mark Judge would “cause girls to become inebriated and disoriented so they could then be ‘gang-raped’ in a side room or bedroom by a ‘train’ of numerous boys” at those parties.

Avenatti, attorney for porn star Stormy Daniels in her lawsuit against President Donald Trump, also represents Swetnick.

When Ingraham asked Clare if the quaaludes accusation was enough for a defamation case, he replied, “It absolutely can be. You’re falsely accusing someone of a criminal act of drugging someone for [the] purposes of a sexual assault. And if that statement was made recklessly — and I certainly believe it was — there’s plenty of elements of recklessness in that sort of conduct.”

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“It gives rise to a defamation claim. And Judge Kavanaugh should absolutely keep those options on the table,” he insisted.

Mark Judge could also file a defamation lawsuit, Clare added.

“Others involved in this saga could, for sure,” he said. “So ‘malice’ is the constitutional standard. What that means for a public figure is you have to show that the speaker knew it was false or acted recklessly in making that statement.”

“And that’s what we’ve got here. We’ve got all sorts of red flags,” Clare said. “We’ve got all sorts of reasons why people should be pumping the brakes. But instead everybody is diving in front of cameras and destroying this man’s reputation. And the only recourse he has is to go to the courts and get a vindication.”

Noting that Kavanaugh’s legacy “will be tarnished” by the “scurrilous allegations” leveled against him, Clare said, “I think he ought to keep it on the table, even if he makes it to the court.”

Senate Majority Leader Mitch McConnell (R-Ky.) filed for cloture to end the Senate’s debate on Kavanaugh’s nomination late Wednesday and called for a procedural vote to take place Friday.

As a result, Kavanaugh could be confirmed on Saturday or Sunday.

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McConnell also announced that the senators and a total of nine staffers may take turns viewing FBI investigators’ supplemental background investigation notes Thursday morning.

Legal analyst Jonathan Turley, a George Washington University law professor, said that McConnell was “certainly right about keeping it out of the public view.”

“This is not a Sherlock Holmes novel. This is not, you know, a conclusion at the end of a gotcha where we found, you know, the lead pipe in the dining room with the body,” Turley said. “These are just basically raw statements. And when you do litigation — particularly with 302s, and I do that a lot — they’re the raw stuff.”

“I mean, these are FBI agents going into the field and saying, ‘This is what this guy said.’ And they often put in a lot of stuff that even they may doubt because they want to bring in all the data into the system,” Turley added. “It’s not fair to a person to have that type of raw information released. It’s not fair to Judge Kavanaugh, and it’s not fair to all the other nominees.”

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