It’s not every day that someone asks for a criminal investigation into their own conduct, but Lt. Gov. Justin Fairfax has.
Last week, a lawyer for Fairfax, who’s accused by two women of sexual assault, wrote to prosecutors in Massachusetts and North Carolina and asked for a formal inquiry.
This is politically smart, perhaps one of the few politically smart things that has happened in this year of political scandal in Richmond. Here’s why: This makes it look like Fairfax has nothing to hide. The lawyer for Fairfax says his client is willing to testify under oath, something he’s not obligated to do — that’s what the Fifth Amendment is all about. This is something of a gamble on Fairfax’s part. If prosecutors were to actually open an inquiry and that resulted in Fairfax getting indicted on criminal charges — well, let’s just say that an indictment usually isn’t good for one’s political prospects. But if nothing happens — and for reasons we’ll soon explain, there are good reasons to think nothing will happen — then Fairfax can claim: I asked them to investigate me, and prosecutors didn’t even think it was worth the trouble. See, I was telling the truth. That’s a bit beyond the actual facts, but that’s what Fairfax could say. As a political defense, that’s a pretty good one.
Now, here’s why there likely won’t be criminal investigations in Massachusetts and North Carolina into whether Fairfax assaulted women there in 2004 and 2000, respectively: It doesn’t appear that the women want them. They’ve had plenty of time to go to the law. Instead, they’ve gone to the news media. Meredith Watson has said all along she doesn’t want to pursue a criminal charge; Vanessa Tyson initially said she would talk to prosecutors in Massachusetts but her lawyer now says she’s had only “initial contact,” which seems a polite way of saying she’s not pressing charges. Prosecutors can’t very well do much without their cooperation.
There are lots of reasons why women don’t want to go through a court case involving allegations of sexual assault. It’s hard to second-guess those decisions from afar. Most cases, though, don’t involve allegations against a public official, and that’s why it’s troubling that Watson and Tyson aren’t going to authorities. They’ve publicly accused Virginia’s second highest-ranking official of a crime — a serious crime, a felony. We have a venue set up to adjudicate such charges — the court system. Fairfax ought to either be convicted or exonerated, which is what a court case would do. Instead, without a court case, he’s left in a gray area — accused, but not charged. That’s unfair to him but more importantly for us, it’s unfair to Virginians, who ought to know whether their lieutenant governor is or is not a criminal. Without a court case, we have no way of knowing.
A lawyer for Vanessa Tyson called Fairfax’s move “another political stunt that shows his lack of respect for survivors of sexual violence.” With all due respect, it doesn’t seem a stunt to us. Yes, in some ways, it is a political stunt, for all the reasons we’ve cited above. But a court case really is the proper way to resolve these accusations. It’s only a stunt because Fairfax doesn’t think the women actually will go to court. A lawyer for Meredith Watson said: “If Justin Fairfax wanted the public to know the truth, he would have welcomed the hearing in the Virginia legislature requested by Ms. Tyson & Ms. Watson. All parties will testify under oath and present witnesses. That is the last thing in the world Fairfax wants and he has fought it at every turn.” Fairfax, a Democrat, understandably resists a hearing that would be run by the Republicans who control the legislature. That feels like a stunt. We all remember how calm and thoughtful the confirmation hearing for Supreme Court nominee Brett Kavanaugh was, right? If people are going under oath, why not in court? That’s what courts are for. However, if there’s never going to be a court case, public pressure for some kind of legislative hearing might well increase. This fall, all 140 seats in the General Assembly will be on the ballot. Republicans have a good talking point: Democrats have so far blocked any investigation of these accusations against Fairfax. Democrats’ motives aren’t entirely pure, of course. They’d like to avoid a partisan circus, but they’d mostly like the whole thing to go away — and Fairfax with it. Republicans see a good political issue, one that also happens to have some moral high ground: Virginians deserve to know the truth. Neither party has the power to force the one thing that should happen: A criminal investigation. And that depends on the two women, and them alone. Even if the women did go to authorities, prosecutors might well be reluctant to pursue cases that date back 15-19 years and lack physical evidence. So, what we have here is a stalemate. The Fairfax move attempts to shift our interpretation of that stalemate to his advantage: He wants his day in court; why don’t his accusers?
In the letter to prosecutors, Fairfax’s lawyer asks them for two things they can’t and won’t do. First, as we’ve noted, the prosecutors can’t really investigate without the cooperation of the women who say they were assaulted. Second, the lawyer asks: “If an investigation were to determine that the allegation is false, which Lt. Governor Fairfax is confident would be the conclusion of any unbiased and professional investigation, the matter should be closed and the public informed.” Police and prosecutors typically aren’t in the business of telling the public much of anything. Generally, they let their cases speak for themselves. So don’t look for out-of-state prosecutors to say that Fairfax didn’t do it. Don’t look for them to say anything, actually.
The timing of the letters is not an accident: Gov. Ralph Northam has summoned a special session of the General Assembly on July 9 to talk about guns in the wake of the Virginia Beach shooting. The Republican legislature has little enthusiasm for that, of course. Legislators are required to show up anyway, but they’re not bound by the governor’s agenda. They can take up anything they want. Northam wants gun control, which is both a legitimate policy goal for Democrats but also something he thinks will be politically advantageous at the polls in November in certain suburban swing districts. Fine. Republicans might want to take up some things they find politically advantageous. One of those is the Fairfax matter. We might yet get a political investigation, when what we should get is a police investigation.