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Nikki Haley Accused of Cheating (and Diving Deep Into the Evidence)

AP Photo/Gerald Herbert

We’ll be honest. We have no idea whether or not it is true, or if anyone will care anyway, but the Daily Mail is accusing Nikki Haley tonight of cheating on her husband:

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To get a more fulsome account, we go to the proverbial horse’s mouth:

From the article:

Presidential candidate Nikki Haley falsely denied cheating on her husband when she was accused of engaging in two extramarital affairs during her gubernatorial campaign, multiple sources who worked with her claim.

New witnesses have come forward telling DailyMail.com that Haley's denials of two alleged 2008 affairs are false, and that the supposed trysts were brazen and widely known among South Carolina politicos.

Will Folks, 49, and Larry Marchant, 61, both signed affidavits in 2010 alleging they had a sexual relationship with the then-South Carolina lawmaker, before she went on to become governor. … 

While the contents of the affidavits were described by major news outlets at the time, this is the first time they have been published outside of Folks' own document which he published on his blog.

A blog? Obi-Wan Voice: That’s a word we’ve not heard in a long time.

The article goes on to include some other allegations from anonymous sources:

But one South Carolina GOP insider told DailyMail.com they knew about Haley's alleged affair with Marchant at the time.

'She was in [Marchant's] office all the time, she'd be there at 11 or midnight, the two of them would be drinking,' the former associate of Haley said.

The GOP insider said he had also seen Haley get into the back of her off-white Cadillac SUV with her other alleged beau, Folks.

'I saw them sitting in it a few times with the windows steamed up,' he said.

A second prominent South Carolina Republican said he regularly saw the distinctive Cadillac outside Folks's duplex in Columbia, apparently staying overnight.

'I became curious when I saw an SUV parked outside early in the morning and late at night. It had legislative tags, it wasn't hard to figure out whose it was,' he said.

He added that Haley was not secretive with her alleged romancing.

'A lot of people saw her sitting on laps, wrapped arm in arm. I saw her myself when she was sitting on Larry's lap,' he claimed.

A third witness, one of Haley's former campaign staffers, told DailyMail.com he had no doubt about the nature of her relationship with Folks and Marchant.

'When she was having the affairs, she and her husband were having a lot of problems and were on the verge of divorce,' the ex-staffer said.

'There's no question she and Will were having an affair.

'Will was not sober at the time. They liked to drink at Za's and Momo's in Columbia. Nikki was a big wine drinker. They would sit and canoodle. It was totally out in the open, everyone in SC politics knew about it.

'I saw [Haley and Marchant] together many times.'

A fourth source, a senior political official in South Carolina, claimed Folks confessed to him he had sex with Haley in her car in a restaurant parking lot.

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First, we are not overly impressed with anonymous factual claims by anyone. Also, the article has the affidavits and, how can we say this? Affidavits as a group don’t overly impress us, in terms of evidence. First, let us sum the affidavits up:

One is by a guy named William Folks, who was her communications consultant. His is borderline salacious, but he talks about sharing a first kiss with her at a particular restaurant in 2007, and then parking somewhere where he all but says they had sex. Like we actually suspect the first draft specifically said this, and then in the editing process, they accidentally deleted that part. He talks about them having many encounters in his apartment, her SUV, and her office. More significantly, he talks about them being out together as a couple. He claims one witness knew of their relationship and the other didn’t. And we find all of that significant because we would wonder if they could actually drum up witnesses who saw them together. Certainly, if someone saw them kiss in public, that would be strong verification.

The second is by a guy named Larry Marchant. He claimed to have had a tryst with her at a conference in Salt Lake City. It includes very few verifiable details, although it does seem that he is basically confessing to cheating on his wife. That lends credibility to his claim, because confessing to the whole world that you cheated on your wife rarely makes your life easier.

But at the same time, here’s why we are less than impressed.

First, some might say ‘well, if they are lying, then it is perjury.’

Well, the answer is, ‘no, it probably isn’t, in this case.’ Typically, in American law, perjury is a material false statement made in connection with a legal case (defined broadly). South Carolina law expands the definition slightly to include lying on required government documents, for what it is worth.

And here, there appears to be no evidence that these affidavits were connected to any case or government documents at all. We tracked down the blog the Daily Mail referenced and you can read the relevant post, here. That blog post says this about Mr. Marchant’s affidavit:

Marchant’s affidavit was issued in response to a request from S.C. Conservatives for Truth in Politics (TIP), a group of Republican leaders that is challenging Haley on a number of different issues. It comes three days after FITS founding editor Will Folks also submitted an affidavit in response to a request from the group.

So, this all sounds like it was done in connection with a political contest—not a legal contest. But an affidavit merely issued to bolster a political campaign just can’t be perjury, assuming it is false. Still, they probably (correctly) figured that most people don’t know this, so they figured an affidavit would artificially bolster their credibility.

The other thing that makes us put less stock in affidavits is that the dirty secret is that they are almost never written by the person signing it. Most of the time they are written by lawyers, who consult with the person who signs it, but they get things wrong and sometimes the person who signs it doesn’t bother to force them to get things right. We try to impress upon our clients that any mistake or falsehood, however minor, could blow up in their faces later, but we are not sure other lawyers get that across. So, mistakes are made. Sometimes those mistakes are innocent, but sometimes the lawyer has an agenda and is proverbially trying to hammer a squire peg into a round hole. For this reason, we have seen a number of very damning claims made in an affidavit pretty much fall apart under the slightest questioning.

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For instance, we are old enough to remember when Michael Avenatti presented a very damning-sounding accusation that Brett Kavanaugh committed gang rape in a declaration. 

(A declaration is pretty much the same as an affidavit, except affidavits are sworn in front of a notary, and declarations merely contain a statement that this is made under penalty of perjury, with no notary involved. So, all the problems with affidavits are present in declarations.)

However, when she was interviewed by the very friendly outlet, NBC, it turned out there was less to the story than the affidavit suggested. 

Basically, even in that very friendly interview, she admits she never saw Kavanaugh rape anyone. She claims she had seen a number of parties where a bunch of men were lined up outside of one particular room, and at the time she didn’t know what was happening. Later on, someone allegedly drugged her, put her in a room like that and then, with her too impaired to legally consent, men would come into the room and have their way with her, one at a time. Therefore, she surmised that the same thing was happening at those previous parties. And during those prior parties, she saw Kavanaugh in the general vicinity of those potential rape rooms. Even if you believed everything she said, that doesn’t add up to ‘Brett Kavanaugh definitely participated in a gang rape.’ It adds up to, at most, a suspicion that he did—and since it never graduated past suspicion, we default to our presumption of innocence.

You can decide for yourself whether the discrepancies between Swetnick's declaration and her statements to NBC are because her lawyer, Michael Avenatti, was acting in bad faith. We considered reaching out to him for comment but 1) he probably would refuse to answer on the grounds of attorney-client confidentiality, and 2) last we heard, he was in prison for reasons that reflect poorly on a person's character for honesty.

Still, we don’t say all that to relitigate the Kavanaugh case, but to illustrate how an affidavit (or declaration) can just fall apart under even the slightest scrutiny.

And, of course, the bare text someone writes just doesn’t compare to live testimony. You can’t examine body language. You can’t listen to their tone. You can’t pick up one of a million cues you can normally use to determine whether or not someone is being honest. And you certainly can’t cross-examine it, and poke holes in their claims.

Now, cards on the table, this author considers Haley to be just about his least favorite candidate for the Republican nomination. But fair is fair. We are not saying these affiants are lying, or even that the affidavits are false. We are just saying that this is not enough to convince this author that they are true, and we think the burden of proof is on the accusers. We talked a few weeks ago about how sometimes the quality of the evidence can’t prove a thing but still justifies the beginning of an investigation. Well, that’s where we are with this allegation against Haley. We think any reporter is justified in looking into it, but we don’t think the allegations are proven, yet.

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Additionally, we learned tonight that Haley has now shut out the Daily Mail from campaign events:

This is unfortunately a way that politicians often try to manage coverage: By controlling access. Politicians tell news outlets that if they report negative stories about them, they won’t get all the hot scoops and interviews they can give them in the future. It’s nasty, and borders on censorship, but Haley is hardly alone in doing it.

A more basic question is whether or not it will make any kind of impact. Bill Clinton had multiple affairs, including an affair with a young intern—including acts while he was on the phone with lawmakers. He has also been credibly accused of rape by Juanita Broaddrick. Yet, even after #MeToo, Democrats seem to think he was a good president—if only not as radical as they hoped. And on the Republican side, we have said that we believe the jury in E. Jean Carroll’s rape/defamation case got it wrong, but he’s been accused of a lot of personal misconduct, including infidelity, and his followers either don’t believe the allegations, or don’t care.

We suspect that part of what is happening is that voters think that these allegations are truly proxies for political fights. We remember Bill Clinton being asked in the 1992 campaign if he believed Anita Hill, and declaring that he did, and this author thinking as he watched it: ‘Like he would say anything but that.’ We think many people just write it all off as nothing but politics, unless there is unusually strong evidence—like Al Franken being photographed inappropriately touching an unconscious woman.

(Okay, that post is pretty funny and tragically overlooked during the Bowman-fire-alarm fiasco.)

But without really strong evidence, we suspect most Americans just write it off. At least, that is our guess.

On to reactions:

Except if you don’t think the evidence against Trump is sufficient but you think the evidence against Haley is strong, there is no real hypocrisy.

Well, that certainly is a take.

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That raises another point. The affidavits are more than a decade old. Some people might write it off for that reason under a sort of statute-of-limitations type argument.

How exactly is Haley trying to control anyone’s sex life? Indeed, she is pro-choice on abortion, if you want to pretend that is about controlling sex (and it isn't).

Dang it, you are forcing us to defend Haley!

That would be another take.

We don’t think politicians are more faithful in their marriages as a group, but also we don’t think that is 100% true. We're old enough to remember when Jay Leno had a laugh when he caught George W. Bush give Laura Bush a pat on her behind during a kiss. And Mike Pence had his whole 'rule' thing. We feel they are both less likely to have cheated than most politicians.

We have seen more than one person claim this, but the allegations don’t suggest she was using sex to get ahead in politics, as one suspects with our current Vice President. Sleeping with a subordinate and a rando is not how you sleep your way to the top. If you sleep your way to the top, you need to sleep with someone who has more power than you, not less.

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It’s been on the Internet since late 2010, including the affidavits. Which doesn’t mean it wasn’t part of a dossier released at what someone thought was an opportune time. But there really isn’t very much new, here.

Of all the takes in this post, that’s one heck of dumb one. Would this person say that Margaret Thatcher should have stayed in the kitchen? Justice Barrett, who cast the final vote to put Roe v. Wade into the dustbin of history, should have stayed home and made babies?

Indeed, we know a certain female editor on this site who has been alleged to wield a chainsaw and we don't think he has the nerve to tell her to stay in the kitchen to her face.

We could be wrong, but we think studies have shown that most affairs occur in the workplace. On the other hand, as one wag put it, there is no such thing as an accurate sex survey.

That’s also fair. This might be the first drops in a flood of evidence. Or it might be just a few drops. People who were silent before might speak up now, because the stakes are higher, or if she makes a denial that angers them. Or there might not be any more evidence than what we have seen. Only time will tell.

We also tend to disagree with that. Character does count for this author. We have long said that we particularly want the president to be a person who will do the right thing, even if he or she knows they won’t get caught or otherwise won’t be punished, even if doing the wrong thing is tempting. But, character is not a factor that overrides everything else.

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For instance, we are working on a VIP post talking about how Donald Trump’s Supreme Court appointments saved the First Amendment and how Hillary Clinton was seeking to subvert the First Amendment. We correctly predicted that Trump’s election would make the First Amendment safer and history has borne us out. That was much more important to this author than any of Trump’s flaws, in November of 2016. And if Trump is the nominee, protecting our right to freedom of expression will be more important in 2024.

And to a lesser degree that applies to Haley. So, if you are curious about that analysis, keep an eye out and, if you are not a VIP member, consider becoming one. In fact, right now there is a deeper discount on VIP memberships than usual, if you use the code below.

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