The Question That Remains About the Mistaken Identity Defense

Especially in this #MeToo era, the dilemma faced by Supreme Court nominee Brett Kavanaugh and his supporters once Christine Blasey Ford came forward with her allegations of attempted rape, was how to deny the charges without impugning the character of an alleged victim. This seems to be the strategy they settled on:

Kavanaugh and his allies have been privately discussing a defense that would not question whether an incident involving Ford happened, but instead would raise doubts that the attacker was Kavanaugh, according to a person familiar with the discussions.

The “mistaken identity” defense was trotted out on Monday by Senator Orrin Hatch, who reportedly heard it directly from Kavanaugh. Ed Whelan, who has been advising Kavanaugh during the confirmation process, tweeted that story the next day.

On Monday, the editorial board of the Wall Street Journal made a reference to the possibility of the “mistaken identity” defense and then on Tuesday, Kathleen Parker wrote a whole column about the possibility.

On Wednesday, Ed Whelan tweeted the following: “A horrific incident similar to the one the accuser alleges may well have occurred. But if so, she’s got the wrong guy.” Matt Whitlock, communications director for Senator Orrin Hatch, retweeted that one and added: “Keep an eye on Ed’s tweets the next few days.”

On Thursday, Ed Whelan unleashed the following information on twitter:

• A Google map of where Ford, Kavanaugh, and other alleged witnesses lived when they were in high school.
• Real estate photos of the home where Whelan thinks the incident might have occurred, based on Ford saying the house was “not far from” the Columbia Country Club.
• A floor plan that shows that the upstairs bathroom is across from a bedroom in this house, just like Ford described.
• And finally, the big reveal: 35 years ago, this was the home of a Georgetown Prep student who looks kind of like Kavanaugh and was also friends with Mark Judge (who was allegedly present during the assault). Yearbook photos and a current photo of the classmate are provided for comparison to Kavanaugh.

When responses suggested that Whelan could be sued for defamation, he tweeted: “To be clear, I have no idea what, if anything, did or did not happen in that bedroom at the top of the stairs, and I therefore do not state, imply or insinuate that Garrett or anyone else committed the sexual assault that Ford alleges.”

This morning Whelan deleted all of his tweets related to this matter and wrote this:

In light of that timeline, the one important question that needs to be addressed is whether or not Whelan coordinated all of this with Kavanaugh and/or Sen. Orrin Hatch. If so, it not only makes the nominee look guilty as hell, a conspiracy to cover up the allegations against Kavanaugh is disqualifying in and of itself, not to mention potentially illegal.

Nancy LeTourneau

Nancy LeTourneau is a contributing writer for the Washington Monthly. Follow her on Twitter @Smartypants60 .