Thread by @SethAbramson

(THREAD) It's time to separate fact from fiction as to the third Kavanaugh accuser, Julie Swetnick—whose allegations are complex and controversial. This thread incorporates (see the first two tweets in the thread) my threads on Ramirez and Ford. I hope you'll read on and retweet.

1/ Two days ago, I wrote a thread on Dr. Ford's allegations against Kavanaugh, establishing that Republicans had *lied* about the definition of "corroborating evidence" in order to *falsely* claim that Ford's well-corroborated account had no corroboration.

https://twitter.com/SethAbramson/status/1046594628005363718

2/ Yesterday, I wrote a thread on Deborah Ramirez's allegations against Kavanaugh, establishing that if, as averred in a breaking news story by NBC, Kavanaugh anticipated Ramirez's allegations *months* before they came out, his entire nomination is a sham.

https://twitter.com/SethAbramson/status/1046915870675619841

3/ Sen. Collins, a swing vote on Kavanaugh's nomination, has just called for the FBI to investigate Swetnick's allegations, which—whatever one already knows about or thinks about the allegations—is a good thing. There is never any excuse to ignore an allegation of sexual assault.

4/ But it's undeniable that Swetnick's allegations are more complex, confusing, and controversial than those of Dr. Ford and Deborah Ramirez—which doesn't mean they're false, but *does* mean they've been systematically misreported, miscast, and misunderstood in media and online.

5/ My aim here is to take an *unvarnished* look at Julie Swetnick's allegations as a former defense attorney and investigator. I expect some to be surprised by my conclusions, and perhaps even by the *variety* of surprise they cause—as my views are professional and not political.

6/ First, I'll lay out a few professional guidelines that must govern any analysis of this allegation—one which has been wildly misreported in the media and systematically lied about by President Trump and his allies on Congress. There's a lot of cruft we have to clear out here.

7/ RULE #1: A witness's credibility is NOT HARMED by a single dismissed lawsuit or dismissed restraining order from the past. The reason for this is that, the way the law works, anyone can file a lawsuit or restraining order at any time—filing for a suit or order means *nothing*.

8/ *Anyone* who wants a restraining order can go see a judge ex parte—meaning, *without the person they want the order issued against being present*—and if they say the right words (usually something about fearfulness) they get a *temporary* restraining order. It's pretty simple.

9/ But because a judge has no idea whether what s/he is told is really true, the TRO—temporary restraining order—has a *very* limited shelf-life: the other party *must* be given a chance to speak. Only after *that* hearing do we attach any moral turpitude to a restraining order.

10/ Many years ago, an ex-boyfriend of Swetnick's filed a restraining order against her that was *dismissed* within *12 days* (far less than the 30 days a TRO commonly lasts). It's not even clear that a hearing for a permanent order was held. So this incident is a *non-starter*.

11/ Those who think Republicans aren't scared about Swetnick's allegations are confusing their confidence they can *lie to America about how restraining orders work* with their supposed skepticism over the strength of her allegations. The GOP is *confident* it can lie about TROs.

12/ The same goes with a *dismissed lawsuit* by a past employer of Swetnick's. If a lawsuit was *dismissed at an early stage*, as looks to be the case here, it means either it was dropped—in which case we can't take anything from it—or a judge looked at it and saw no valid claim.

13/ *No attorney*—whether Avenatti or *anyone else*—is going to turn down a client, or consider their claims any less credible, because of a dismissed TRO and/or dismissed lawsuit from the past. These events *only* bear on credibility because the GOP and media misrepresent them.

14/ RULE #2: In America, we do *not* discredit or disbelieve allegations of sexual assault because of who someone's attorney is. Every litigant, victim, and defendant is entitled to find a zealous advocate for their case, and many of America's most zealous advocates are disliked.

15/ In Julie Swetick's case, the attacks on her because of who her attorney is are *obscene*. First, because she has a friend who went to law school with Michael Avenatti, so she selected him as her attorney as a referral from a friend and not as some sort of political statement.

16/ Second, Republicans *aren't* attacking Michael Avenatti because he's a bad lawyer—they're attacking him because he's an effective one. He has beaten Trump and Cohen and Trump's allies at every turn—and has produced on his promised evidence at every turn—and that enrages them.

17/ I think we sometimes forget that the more effective someone is as an advocate for a cause, the more they are attacked. Avenatti may be on TV a lot—he may be a legal brawler—but he has proven Trump and his allies to be liars *over and over again*. And *that's* why he's on TV.

18/ RULE #3: Just as a witness's credibility is—in legal terms—NOT HARMED by their choice of attorney, a witness's credibility is NOT HARMED, in legal terms, if their demeanor in an interview isn't *exactly* what you would expect, and *differs* from the demeanor of other victims.

19/ But this one's really dicey, because in fact jurors (and any other viewers or listeners) *can* judge someone from body language, and *can and should* judge people for the things they say and—*sometimes*—how they say them. That's *different* from judging a victim's *emotions*.

20/ Dr. Ford testified in a way that expressed sadness and fear—which America considers "acceptable" in a sexual assault victim. What America *doesn't* accept from its sexual assault victims—but curiously, is fine with from rich white men accused of sex crimes—is evident *anger*.

21/ In her Showtime and NBC interviews, Swetnick seemed somewhat *angry*—and many viewers, even progressive ones, instinctively found themselves disliking or disbelieving her in *part* because she so clearly was *angry* at Kavanaugh. Meanwhile, *Kavanaugh's* anger was "credible."

22/ Swetnick's anger also manifested itself in a desire—understandable if her account is true—that Kavanaugh *not be confirmed*. But in being willing to state her desire publicly, she *further* turned off some viewers who (because of Avenatti or otherwise) saw her as "political."

23/ Dr. Ford was apolitical, not angry, and hesitant to come forward in a way viewers found appealing—OK. That's her way of grieving and suffering, and so it's unimpeachable. If Swetnick is angry and wants Kavanaugh to be held accountable—and is vocal about that—that's fine, too.

24/ What we're now seeing from Republicans is an implication that Swetnick is *crazy*—a sick, misogynistic, 1950s-era ploy to discredit a sexual assault survivor that plays off Swetnick's anger (again, *quite righteous* if she was wronged) and disinformation about what TROs mean.

25/ Having said that, as a matter of evidence viewers *can* judge Swetnick positively or negatively based on (a) the *content* of her accusations, and (b) how she *frames* them narratively. These are very different questions from the performativity-based assessment the GOP urges.

26/ RULE #4: A witness's credibility is NOT HARMED by how their allegations are *framed* by political opponents or *reported* by the media—that's all a game we sometimes stupidly agree to play. No—the rules are, *the allegations are the allegations* and the *facts are the facts*.

27/ *THE SWETNICK ALLEGATION*

1. Swetnick reported her allegations in the 80s.
2. Swetnick swore under penalty of perjury.
3. Swetnick agreed to take a polygraph.
4. Swetnick offered to talk to the FBI (a felony if she lies).
5. Swetnick offered names of corroborating witnesses.

28/ *THE SWETNICK ALLEGATION (CONTINUED)*

6. Swetnick's account of Kavanaugh's drunken aggressiveness is corroborated.
7. Swetnick's claim he drank more than beer is corroborated.
8. Swetnick's claim of rape—not by Kavanaugh—was reported to police.

Here are the pending issues:

29/ *THE SWETNICK ALLEGATION (CONTINUED)*

9. Media are awaiting copies of her 1980s report of a gang-rape from police.
10. Swetnick named the officer who took her report, but he has since died.
11. Media are still trying to track down people Swetnick said attended these parties.

30/ Here's where things get messy—in other words, here's where the misreporting and deliberate Republican disinformation begins. So in the next tweet I'll try to issue some *clarifications* regarding elements of Julie Swetnick's allegations against Brett Kavanaugh and Mark Judge.

31/ *CORRECTING FALSE CLAIMS ABOUT SWETNICK AND HER ALLEGATIONS*

1. Swetnick says she briefly met Kavanaugh—but *doesn't* say he'd remember her.
2. Swetnick *doesn't* claim to have been part of Kavanaugh's social circle.
3. Swetnick *doesn't* allege Kavanaugh or Judge raped her.

32/ *MORE CORRECTIONS OF FALSE CLAIMS ABOUT SWETNICK AND HER ALLEGATIONS*

4. Swetnick *doesn't* say she saw Kavanaugh/Judge rape anyone.
5. Swetnick *doesn't* say she saw Kavanaugh/Judge have sex.
6. Swetnick *doesn't* say she has direct evidence Kavanaugh/Judge spiked alcohol.

33/ So what *does* Swetnick say? She says she saw Kavanaugh grope women while drunk, and offers circumstantial evidence that he *might* have spiked alcohol at a party. The former allegation is of a misdemeanor sexual assault—or, many of them—the latter is not necessarily a crime.

34/ Swetnick says she was raped at a party Kavanaugh and Judge attended, and the rape occurred when she was intoxicated. She offers circumstantial evidence that Kavanaugh and Judge may've known such sex was occurring and wittingly or unwittingly facilitated it by spiking alcohol.

35/ The circumstantial evidence she offers on the alcohol spiking isn't insubstantial—but also isn't conclusive:

1. She heard a rumor.
2. She saw Kavanaugh/Judge by the punch bowl.
3. Kavanaugh was giving punch he'd poured to women.
4. She believes that her own punch was spiked.

36/ There's also another item which may or may not be related:

5. She says she saw Kavanaugh and Judge lingering around doorways with other boys at several parties, and she believes that inside those doorways intoxicated women—who may have drunk spiked alcohol—were being raped.

37/ I was once a criminal defense attorney who worked rape cases, so I can say that there are *many* defenses to Swetnick's suspicions about Kavanaugh, Judge, and possible rapes—but I *also* must concede *she does not accuse them of rape*. She merely offers some suspicious facts.

38/ What defense attorneys sometimes do is "amp up" or cartoonize criminal allegations—as a rhetorical tool—as a way of underscoring how ridiculous they are. In the case of the GOP, they're perverting this typical rhetorical device by *outright lying* about what Swetnick alleges.

39/ Trump, right-wingers in media, and White House allies in Congress—including sitting GOP senators, who should be ashamed of themselves—are implying or outright alleging that Swetnick accused Kavanaugh of "gang-rape," which she most certainly did not do. That's an outright lie.

40/ Why would the GOP amp up her claims in this way? First, to falsely discredit her; second, to distract from her *actual allegation of criminal conduct*—which is that she *witnessed* Kavanaugh sexually assaulting women; and third, to underscore her perceived credibility issues.

41/ When a sexual assault victim is angry—motivated to hurt the suspect or defendant—defense attorneys sometimes amp up the allegations, because doing so dovetails with what jurors may *wrongly* perceive as a witness's motive to lie based in anger. The GOP is using that playbook.

42/ It was painfully clear, watching Swetnick on Showtime and NBC, that she *did* want her circumstantial evidence regarding Kavanaugh, Judge, and rapes to amount to more than it may actually amount to—but that *doesn't* mean that she *lied* regarding her circumstantial evidence.

43/ The media—playing along with the GOP (and its own perception that Swetnick plays poorly on TV because of her anger)—decided to turn minor changes in phrasing into credibility problems for Swetnick. I was surprised and saddened to see Kate Snow do this with her NBC interview.

44/ For instance, she turned the difference between Swetnick saying boys "lined up" outside doors at these parties in her affidavit versus her saying they "huddled" outside doors in her NBC interview as an inconsistency. And I'm sorry, but ultimately that's a matter of semantics.

45/ By the same token, in her affidavit Julie Swetnick said that she "became aware" of Kavanaugh and Judge spiking drinks—which sounds like rumor evidence, or her putting together a case from her own observations circumstantial evidence—and that too she has been consistent about.

46/ Avenatti wouldn't have *allowed* her to confuse "became aware" and "I saw"—which is why her circumstantial evidence about Kavanaugh and Judge spiking drinks is clearly what she was referring to when she said she "became aware" they were doing this. But she never said "I saw."

47/ The problem for Swetnick is that, watching her, we can tell she wants her evidence on these points to be stronger. Still, that means that her *restraint*—not saying "I saw," and implying Kavanaugh and Judge may have had sex or raped someone but not saying "I saw"—is credible.

48/ Of course, media misreporting and GOP disinformation has *obscured* her *actual* allegation: that she witnessed Kavanaugh sexually assault women—in a manner commonly called groping, which, if you didn't know, is a crime. *No one* has discredited *any part* of that allegation.

49/ Indeed, Swetnick's claim is CORROBORATED by other witnesses, who say Kavanaugh got *aggressive* when he was *drunk*. Ford says that; Ramirez says that; the recent revelation of Kavanaugh assaulting a man in a Yale bar while drunk says that; *Kavanaugh's own friends* say that.

50/ The upshot is Sen. Collins was *right* to call for Swetnick's allegation to be investigated, as when you sweep away the media and GOP noise her allegations are actually *simple*, *corroborated*, and *eyewitnessed* (by her). *And* her account has some "indicia of reliability."

SUMMARY/ Swetnick has multiple security clearances; would lose her job if she lied; issued a sworn statement; asked immediately for an FBI interview; offered to take a polygraph; says things re: Kavanaugh's drunken aggressiveness others corroborate. She deserves an investigation.

PS/ The *oddest* claim Snow made was that there was some kind of problem with Swetnick's timeline for 2018 reporting Kavanaugh's pawing of women. Swetnick says she learned of Kavanaugh's nomination in July, then chose to speak up once Ford did in September. I see no problem here.