Curtains for Cain

In the 1997 movie Titanic there is a short period of time after the ship hit the iceberg and before it began to sink that no one on the ship took seriously the danger they faced.  In fact, the passengers seemed to treat the grazing of the iceberg as a catastrophe averted.  Kate Winslet and Leonardo DiCaprio continued pursuing their love for each other, Billy Zane continued his dastardly framing of DiCaprio, and the whole ship looked forward to the rest of the quick journey across the Atlantic, never realizing until too late that the ship was doomed.  In only a few minutes the passengers were scrambling for lifeboats or jumping into the water, and the ship itself sunk off of the silver screen and into the Metaphor Hall of Fame.

This is where the Herman Cain campaign is right now.  The fatal blow to the campaign has been made.  Whether he knows it or not, Herman Cain's campaign is over.  I would be overjoyed to be wrong, but the numbers and believability of sexual harassment claims against him have amounted to the critical mass of complaints that end the Cain campaign.  It is only a matter of time before everyone realizes it.

On October 31, Politico reported only two vague and anonymous complaints, made long ago, and we were all told that they resulted in some kind of agreement with the National Restaurant Association.  Understandably, conservatives flocked to defend the near-frontrunner for the Republican presidential nomination.  Jonathan Martin of Politico unfairly called on Cain to not only explain the accusations but defend himself from them.

Comparisons were made to Clarence Thomas, who faced Anita Hill during his Senate confirmation battle.  While not alleging actual sexual contact, Anita Hill testified to a series of boorish and obnoxious sexual-themed verbal encounters with the conservative Judge Thomas, who furiously defended himself against what he called "a high-tech lynching."

In the Clarence Thomas case it was fair to ask about whether the same or similar actions had happened to other subordinates or co-workers of Judge Thomas.  In fact, far from it, other women with whom he worked spoke very highly of Clarence Thomas, and this led to his confirmation to the Supreme Court in 1991.

With the fourth reported charge of sexual harassment leveled at Herman Cain, the comparisons to Clarence Thomas have ended.  In fact it is the fourth specific case of sexual harassment, the charge of Sharon Bialek, that constituted the turning point from mere ice on the promenade deck to compartments filling with water and spilling over to other compartments, starting to sink the ship.

At a November 6 press conference, Sharon Bialek, with her attorney Gloria Allred beside her, claims that in 1997 (the same year that the movie Titanic was released), she visited Herman Cain to ask for a job.  Mr. Cain allegedly  took her to dinner and afterwards reached up Ms. Bialek's leg and tried to force her head into his crotch area.  After she protested, Cain allegedly stopped his advances and drove her home.

As a litigator, I am routinely lied to and sometimes I end my day so cynical that I am surprised when someone actually tells me the truth.  But, with all apologies to Herman Cain fans, this story has the ring of truth to it.

Sure, you can say that Ms. Bialek was coached by a very experienced attorney, and an argument can even be made that Ms. Bialek is trying to make some money off of this matter.  Reportedly, Ms. Bialek had has money problems, including filing personal bankruptcy twice.  And no one jumps into a hornet's nest like this matter for free.  There very well could be a highly-paid magazine exclusive interview in Ms. Bialek's future, and Ms. Allred may be advancing her legal fees against any possible magazine deal payoff.  All this is possibly true.

And as Ann Coulter has written, Bialek's proximity to David Axelrod cannot be ignored.  In the past it was Axelrod who managed to at least be nearby when other Obama adversaries had sexual misdeeds reported about them.

The timing of it is also a little off, as Ms. Bialek could have waited until Cain won a primary victory or two before making her charges.  The value of her exclusive story would have increased even more at that time.

But in his November 8 press conference reply to Ms. Bialek's charges, Herman Cain made two almost inexplicable statements: in answering charges that he said did not happen and could not have happened, he offered to take a lie-detector test, "but only if I had a good reason to do that."  Clearly, if ever he has a good reason to take a lie-detector test, it is now.  In fact, most anyone accused of completely made-up sexual harassment charges would sprint to the nearest lie-detector and demand to be strapped in and tested immediately.  And in answer to a Wall Street Journal reporter's question, Cain said that "there will probably be other" complaints of sexual harassment.  If these complaints of sexual harassment are made up out of thin air, how is it that he predicts there will be others?

Also, one of the earlier complainants, Karen Kraushaar, currently a spokesman for the State Department, has not come forward to give details about her encounter with Mr. Cain but she stands by her 1999 complaint.  She says she wishes to stay out of the matter, and this in itself lends credibility to her complaint. 

And this might explain the timing of Ms. Bialek's complaint.  If she were concerned that there might be other women specifically and credibly complaining of past sexual harassment at the hands of Mr. Cain, Bialek would surely want to be before the others.  The possible  value of Bialek's story could diminish if she were the eighth or ninth woman saying the same thing.

Numbers matter. While Clarence Thomas had only one accuser, so far there are 4 women charging Cain with sexual harassment, and as Cain himself predicted "there will probably be others."

Remember the Clinton administration?  It seemed that on average, about every three months there would be a brand new, credible scandal -- not all involving women.  All of these scandals were quickly denied and the accusers promptly and efficiently smeared.  But after a few of these scandals, one could reasonably conclude that President Clinton was a serial law-breaker.  As a variation in the old saying, maybe where there is smoke there isn't always fire, but where you had the amount of smoke associated with the Clinton White House, you know there are at least several real fires.

Same here. With one or two accusers, especially if they stay anonymous and receive relatively small settlements from the National Restaurant Association, one can probably make the case that either there is nothing to these accusations, or if there were the actions were isolated and won't be repeated.  But with several women complaining of sexual harassment by Mr. Cain, and at least one specifically and credibly complaining of sexual harassment by Mr. Cain, some or all of the complaints are probably true.

While the passengers were donning their life jackets, Kate Winslet tugged at the Titanic chief engineer's coat and melodramatically said, "I saw the iceberg, and I see it in your eyes."  He told Winslet what I am telling the Cain campaign right now: this ship will sink.  Unlike what happened in the movie, I sure hope there are enough lifeboats for everyone involved.

Tom Thurlow is an attorney who practices law in the San Francisco Bay area and manages the blog  He lives in Napa County with his wife Martina and daughter Rachel.

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