August 10, 2004

MATT WELCH SEEMS OFF BASE TO ME HERE. He quotes this passage from one of my posts regarding threats to release divorce and psychiatric information about the Swiftboat Vets:

Indeed, if people start dishing dirt about these guys instead of offering factual refutations, it will pretty much serve as an admission that the charges are true.

Matt’s question: “Is There a ‘Pretty Much’ Legal Standard?”

I don’t know why we need a “legal standard” here, since the only court involved is the court of public opinion. (Why is it that journalists are so anxious to turn political questions into legal ones?) As I said in another post, “Kerry has faced specific criticisms and questions. His campaign is responding with ad hominems and generalities.” And surely threats of personal blackmail against whistleblowers don’t cut in Kerry’s favor.

I don’t see where legal standards enter the picture here. But I’ll give it a try. If I were in court and saw a defendant who made inconsistent statements about what happened that were contradicted by others who were there, and when the defendant’s response was ad hominems and generalities, I think I’d be entitled to be skeptical. Juries are entitled to draw inferences from a witness’s demeanor.

And while I agree with Welch that I’d rather be talking about other stuff, it’s Kerry who has built his campaign around his four months in Vietnam (and, he says, Cambodia!) rather than, say, his record in the Senate. We can draw inferences from that, too.

For more on why this might matter, read these comments by my colleague, law professor (and Vietnam veteran) Tom Plank.

UPDATE: More specifics here.

ANOTHER UPDATE: Reader Bob Gleason emails:

I’ve always been lead to believe that the standard taught by law professors is: If you have the facts, argue the facts; if you don’t have the facts, argue the law; if you have neither the facts nor the law, pound your shoe.

OK, so it’s hackneyed. But that seems to be the paint-by-numbers Kerry defense at this juncture.

Which is most surprising, considering that he could clear all this up by simply releasing his full military records.

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