The question of what standard — legal or otherwise — should be used to assess the sexual misconduct allegations against Judge Brett Kavanaugh has dominated the halls of the Capitol this week.
Sen. Lindsey Graham (R-SC) — a member of the Judiciary Committee, who also served as a prosecutor and a judge in the military — told reporters Tuesday that he has come up with his own answer to that question. He said he is treating the allegations brought by Christine Blasey Ford, who says Kavanaugh sexually assaulted her when they were in high school, the same way a judge would treat them if someone were seeking a search warrant.
“I am not applying a criminal law standard,” Graham said. “I’ll apply can-you-get-a-warrant-here standard. You can’t.”
The Constitution’s Fourth Amendment standard for issuing a search warrant is “probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Graham sounded skeptical that anything Blasey Ford says, in a hearing scheduled for her and Kavanaugh Thursday, would change his mind.
“I am going to ask myself: Would this allegation in a legal system go anywhere? and the answer is no,” Graham said. “You wouldn’t get a warrant. You wouldn’t be able to sue. You wouldn’t be able bring a criminal charge, because you couldn’t tell the accused when it happened or where it happened. And if you’re a judge, they’re seeking a warrant, you’d ask, is there anybody else involved that we know of? The names that we have been told all say they don’t know what Mrs. Ford is talking about, or it didn’t happen. That’s the setting of the accusation.”