Here’s the unusual situation that Virginians find themselves in.
We now have the benefit of a 55-page report detailing everything that one of the state’s most prominent lawyers could find about why a racist photo appears on Gov. Ralph Northam’s page in his medical school yearbook from 35 years ago.
Never mind that the report was ultimately inconclusive in determining exactly who is in that photo or how it got there (although the evidence leads us to think that it’s probably not Northam in the photo). The point is that an investigation was conducted, it seems as thorough as possible for someone working without the power to subpoena witnesses to compel testimony. Anyone can now go online at https://bit.ly/2M5TSHQ to read everything that was found — including intriguing hints that some people may have fingered just who really is in the photo but some of those suspects refused to talk.
By contrast, we know almost nothing about the allegations that Lt. Gov. Justin Fairfax committed sexual assault against two different women. True, we know what those allegations are because the women have come forward to speak. And we know Fairfax has denied them. And we know that one of his employers — a San Francisco-based law firm — is conducting an investigation and put Fairfax on leave. But we may never know the outcome of that investigation. As Fairfax’s other employer, the people of Virginia have a right to wonder.
Let’s boil down this contrast even more.
Northam is not accused of any crime— bad judgment and racism, yes, but those are social offenses, not statuary crimes. By contrast, Fairfax is accused by two citizens of crimes — serious ones, violent ones, felonies. So why is it we now know more about what Northam did or did not do than what Fairfax did or did not do? Shouldn’t the more serious allegation merit a more serious investigation?
Some of these questions are easy to answer. We have the public report on Northam because Eastern Virginia Medical School commissioned it. The school had a pressing interest in commissioning the inquiry: It wasn’t just Northam’s reputation that was tainted by the yearbook photo; it was the school’s, as well. The school had a vested interest in determining answers, not just about that one particular photo but the culture that produced it. The school went out and found the biggest and most reputable name it could find: Former U.S. Attorney Richard Cullen, who heads the powerful McGuire Woods law firm in Richmond. He has now produced a report that the school should find very useful in rooting out a culture that allowed blackface photos in its yearbook as recently as 2004 and Confederate imagery as recently as 2013, as well as lots of sexual innuendo.
If it hadn’t been for the school’s need to protect its reputation — and its deep pockets — we’d have none of that. No government commission investigated because this wasn’t a governmental issue. Journalists investigated somewhat, but not to the extent that Cullen did because no news organization in the state has the resources to put to the task that McGuire Woods does. His report listed nine people who worked on the investigation for nearly four months. That’s more people than most smaller newsrooms have in total, which leads to this important observation: Journalism can be a powerful watchdog only to the extent that readers support it through their subscriptions.
We now know as much as we will likely ever know about Northam’s yearbook photo unless someone actually confesses to being in it, which seems highly unlikely. By contrast, we know almost nothing about the more serious allegations against Fairfax beyond what’s already been reported. It’s unclear if either of the two women who have accused him of crimes is interested in pressing those through the one venue that society has set up for adjudicating allegations of crimes: The court system. If there are investigations in the two jurisdiction involved — Massachusetts and North Carolina — we’d only know if authorities there chose to talk about them, which they typically don’t. We’d only know if there was an indictment, or a public statement that authorities there aren’t pursuing charges. It’s possible something’s happening behind the scenes we don’t know about; it’s also possible that nothing is happening — which leaves Fairfax, and all of Virginia, in an uncomfortable gray area.
There is one investigation taking place — and that’s the one by Morrison & Foerster, the international law firm that employs Fairfax in its McLean office (being lieutenant governor is only a part-time job). That firm put him on leave as soon as the allegations surfaced and “retained outside counsel to conduct an investigation.” That was February. It’s now May, and all we know is that Fairfax is still on leave. Does that mean the investigation is still going on? How robust is it? As a private firm, Morrison & Foerster is under no obligation to say what it finds — unlike the state-funded Eastern Virginia Medical School in the Northam yearbook case. We may know only by inference — does Fairfax ever return to practicing law, or does the law firm suddenly and formally cut ties with him? Virginians ought to find this an unsatisfactory situation: This is essentially an outsourced investigation of a public official by a private company whose interests may not align with the citizens the lieutenant governor represents.
There is another option, of course: The General Assembly could investigate. Republicans on the House Courts of Justice Committee would sure like to, but have been stymied by Democrats, who want nothing to do with such a proceeding. In a way, both sides are right: Republicans are right that there ought to be some kind of investigation into these serious allegations against the state’s No. 2 officeholder, but Democrats are right to be suspicious of a partisan inquiry (a “witch hunt,” to employ a popular phrase). Does anybody think the U.S. Senate’s handling of the allegations against then-Supreme Court nominee Brett Kavanaugh constituted an example of careful, serious-minded jurisprudence?
The best resolution, of course, would be through the courts — that’s where accusations of criminality ought to be addressed.
However, unless something happens, Virginia ambles along with its lieutenant governor accused of crimes that will never get resolved in any kind of public way. That’s not fair to him but, more importantly, it’s not fair to Virginia. The longer this goes on, the stronger the Republican argument for a hearing becomes.