President Trump Claimed Kavanaugh Was Innocent Until Proven Guilty — Was He?

Posted on Oct 16, 2018 in Criminal Defense

Brett Kavanaugh was sworn in as a Supreme Court Justice last Monday following a highly publicized confirmation hearing. Kavanaugh has been accused of sexual assault  by three women. On October 6, the Supreme Court voted 50-48 in favor of confirming Kavanaugh.

At the swearing-in ceremony President Trump had this to say: “What happened to the Kavanaugh family violates every notion of fairness, decency, and due process. [In] our country, a man or a woman, must always be presumed innocent unless or until proven guilty.”

This wasn’t the first time the President had invoked the presumption of innocence in defending Kavanaugh. Other Republicans, from Senate Majority Leader Mitch McConell, to Senators Lindsey Graham and Susan Collins, have echoed this defense.

In the midst of the #MeToo movement, the Republicans’ strategy taps a vein of paranoia running through certain groups of Americans (we won’t presume as to what these groups could possibly have in common). #NotAllMen goes the counter-hashtag. Their warning: what happens when unfounded or false accusations bring down innocent men?

In theory, this is exactly the type of thing the presumption of innocence is meant to protect against. As a staple of our justice system, the principle is the line between accused and convicted. It means that no one can be considered guilty until they have gone through due process and fair trial in a court of law that is guaranteed by our Constitution.

There’s just one problem with invoking the presumption of innocence in the case of Kavanaugh: at no time was Kavanaugh undergoing a criminal proceeding.

The testimonies of Christine Blasey Ford and Kavanaugh himself were not given in a court of law. The outcome—whatever it may have been—was never going to result in conviction or acquittal. No one was trying to indict Kavanaugh; they were trying to see if he was right for a job.

According to Time, “under Richard Nixon, the Justice Department specifically clarified that the [presumption of innocence] ‘was merely a rule of evidence with no application to pretrial proceedings.’”

In other words, it means literally nothing to claim that someone is “innocent until proven guilty” anywhere outside of a criminal trial. Kavanaugh, for all intents and purposes, was undergoing what amounted to a high-stakes, nationally publicized job interview.

In a proper trial, the prosecutor, who is trying to show that the defendant is guilty, faces what is known as the burden of proof. This is the obligation to produce evidence proving the charges brought against the defendant. The ability to fulfill this obligation determines whether the verdict will be guilty or not guilty.

Kavanaugh’s confirmation hearing had no prosecutors and no defendants. There was no burden of proof to be met, because no one was standing trial.

To say that Kavanaugh should have been treated as innocent until proven guilty, when legally speaking no one was trying to prove him guilty, is to misunderstand the difference between discretionary guilt and legal guilt.

To claim that the Kavanaugh proceedings had anything to do with due process is to fundamentally misunderstand or misrepresent the American legal process.

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