On Monday, the Washington Post published a memo that Rachel Mitchell, the sex crimes prosecutor who questioned Christine Blasey Ford and Brett Kavanaugh on Thursday, sent to Senate Republicans with her analysis from the hearing.
During Ford’s testimony, observers noted how even-handed Mitchell’s questioning seemed to be given the partisan nature of her role. Her questions to Ford often appeared to probe for inconsistencies intended to undermine Ford’s credibility. But, as Ford was careful with her words, so was Mitchell, and she stopped short of shaping those questions into fully realized arguments that could have made her appear to be attacking an alleged sexual assault victim. Her tone toward Ford was respectful and patient. And for the brief period she was allowed to question Kavanaugh, she made a show of being willing to question his account, too—to the point that some Republicans complained that she was working for the wrong side.
Some observers were surprised, then, to find a dramatically different version of Mitchell in the memo she sent out to Senate Republicans—one much more prosecutorial and partisan. In the five-page memo, Mitchell focused only on Ford’s testimony, ignoring the second half of the hearing that involved Kavanaugh facing questions. She emphasized that she was acting as an independent professional, not motivated by party politics, despite having been hired by Senate Republicans.
A “he said, she said” case is incredibly difficult to prove. But this case is even weaker than that. Dr. Ford identified other witnesses to the event, and those witnesses either refuted her allegations or failed to corroborate them. For the reasons discussed below, I do not think that a reasonable prosecutor would bring this case based on the evidence before the Committee. Nor do I believe that this evidence is sufficient to satisfy the preponderance-of-evidence standard.
She then went on to outline what the gaps in Ford’s memory and the inconsistencies in Ford’s accounts—from her testimony, her communications with reporters, her records from therapy sessions, her statements during a polygraph test, and her confidential letter to Sen. Dianne Feinstein—that Mitchell considered potentially troubling.
But as Mitchell stipulated in her memo, her assessment of Ford’s allegations were primarily held to standards she would use in a criminal case. Just as Democrats have repeatedly emphasized that a confirmation hearing is a job interview, rather than a criminal prosecution, Mitchell emphasized that she was working within a legal context and could not speak to the standards of a political procedure like a Supreme Court nomination. The suggestion, therefore, is that her legal opinion should not be considered as an official conclusion. It will likely still be touted by Republicans before the full Senate vote on Kavanaugh’s nomination.
Each of the points she brings up in the memo easily could be challenged on its own. They include:
• Slight inconsistencies about the time frame in which the alleged assault occurred and the number of people at the party;
• Ford’s inability to remember some details about the party, including how she got home;
• Her delay in naming Kavanaugh when talking about the assault in therapy;
• The statements by alleged witnesses saying they did not remember the party;
• Her decision not to provide her therapy notes to the committee;
• Her claims of having a fear of flying, while also having taken flights for vacations; and
• Questions about her reasons for disclosing her allegations against Kavanaugh.
But beyond protests against these points, critics were more baffled by the absence of Kavanaugh from the memo itself. He was only mentioned in reference to Ford’s testimony, and while Mitchell was pulled from questioning Kavanaugh early in his turn before the committee, she was able to ask him some questions about the substance of his account—questions that touched on inconsistencies.
The memo does seem intended to provide validation for any Republican senators with doubts about casting their votes with the party, but there is always a chance—admittedly a relatively small one, given the tight restrictions—that a reopened FBI background investigation could provide evidence to counteract some of the pro-Kavanaugh messaging of this dubiously independent outside prosecutor.