Jurisprudence

Rachel Mitchell Crossed a Line No Prosecutor Should Cross With Her Christine Blasey Ford Report

Rachel Mitchell, counsel for Senate Judiciary Committee Republicans, leaves after the Senate Judiciary Committee hearing on Thursday.
Rachel Mitchell, counsel for Senate Judiciary Committee Republicans, leaves after the Senate Judiciary Committee hearing on Thursday.
Brendan Smialowski/AFP/Getty Images

When prosecutor Rachel Mitchell was hired by Republicans on the Senate Judiciary Committee to conduct the questioning of Christine Blasey Ford, the woman who has accused Supreme Court nominee Brett Kavanaugh of sexually assaulting her when she was a teenager, it seemed odd.

As a state prosecutor for three years and a federal prosecutor for 25 more, I knew that job to be about holding a person who committed a crime accountable and finding the truth. But that was not Mitchell’s job last week. Her job was to attempt to dent a victim’s credibility and serve as a “female assistant” cut-out for the all-male, all-white Republican side of the committee.

By most impressions, Mitchell failed to do any significant damage to Ford’s account of events during Thursday’s Senate testimony. In an apparent effort to change that perception, Mitchell issued a report on Sunday that was addressed not to the full Judiciary Committee, or to the Senate at large, but instead to “All Republican Senators.”

In her report, Mitchell does what no prosecutor should do—she attempts to discredit the victim of a sexual assault. Her effort is so misleading, it approaches farce. Mitchell begins her offensive by falsely claiming that Ford “struggled to identify Judge Kavanaugh as the assailant by name.” She relies on the fact that notes from a 2012 therapy session, when Ford disclosed that she was sexually assaulted, did not include his name.

What Mitchell fails to mention is that Ford told her therapist that her attacker was “from an elitist boys’ school” who went on to become “highly respected and a high-ranking member of society in Washington.” Ford’s description fits Brett Kavanaugh to a T. More importantly, an “experienced sex crimes prosecutor” like Mitchell should understand that Ford may have done what many sexual assault victims do—made a considered decision not to identify her attacker by name. Later in 2012, Ford told her husband that Brett Kavanaugh was the person who had assaulted her.

Next, Mitchell falsely claims that Ford “changed her description of the incident.” The “change” that Mitchell says undermines Ford’s credibility was Ford having once described the Kavanaugh incident as “sexual assault” and once as “physical abuse.” Would you call a witness a liar because he recounted an event by once saying he was going to his “house” and once saying he was going to his “home?” This is what Mitchell seeks to do.

Her next allegation is that Ford does not remember “key details of the night in question.” Details like who invited her to the party, how she got there, and what method of transportation she used to get home.

As Ford describes the assault, Kavanaugh forced her into a bedroom, covered her mouth when she tried to scream, and attempted to remove her clothes so he could rape her. In the context of an attempted rape, who invited Ford to the party hardly seems like a “key” event. And any prosecutor who deals with victims of crimes knows that the mind often recalls the trauma itself, leaving the insignificant details blurred in its wake.

In her next line of attack, Mitchell claims that the other people at the party where the alleged assault occurred do not support Ford’s version of events. Ford has identified at least three other people at the party. Ford has said that two of the people, Leland Keyser and Patrick Smyth, would have had no idea the assault occurred because they were on a different floor of the house and would not have been able to see or hear the assault. From their perspective, there was nothing that would distinguish that party from any of the countless other parties they may have attended in their teens.

Mitchell includes part of a statement from Keyser in her report, but she edits out the part where Keyser says that although she does not remember the specific party from 36 years ago, she believes Ford and thinks she is telling the truth.

According to Ford’s description of events, the third person at the party, Mark Judge, was an eyewitness to the assault. In a written statement to the Judiciary Committee, Judge said both that he has no memory of, and never saw, the incident Ford describes.

Witnesses often say “I don’t remember” when they do not want to provide evidence against a friend or family member. Even so, in his 1997 book Wasted, Judge acknowledged that he was frequently blackout drunk; Ford said that Judge and Kavanaugh were very drunk when the incident occurred.

It is possible that Judge witnessed the assault but was too drunk to remember. However, that would be very different from Judge saying that he has a clear memory and is confident the assault did not take place. A prosecutor knows this distinction well, but it is missing in Mitchell’s assessment of the question.

In addition to disparaging Ford’s memory of the sexual assault, Mitchell alleges that there is something defective with Ford’s memory of “important recent events.” Mitchell says that Ford cannot remember if she provided the Washington Post with a copy of her therapy notes or a summary of the therapy notes that she made after reviewing them.

That’s it? Perhaps Mitchell should have asked Ford what she was wearing, or what she ate for breakfast, when she spoke with the Washington Post. If she did not remember those things, would it be additional proof that Ford was lying? No. And I have no doubt that in her 25 years as a sex crimes prosecutor, Mitchell has more than once argued to a jury that victims of sexual assault should not be disbelieved because they cannot remember every detail.

During Thursday’s hearing, Mitchell asked Ford a seemingly endless series of questions about her fear of flying. Perhaps in an effort to justify what was widely criticized as a waste of time, Mitchell has included an analysis of Ford’s statement that she flies for work and vacation in her report. Mitchell’s report also makes the point that Ford’s hearing testimony was delayed because of Ford’s fear of flying. Both can be true. Someone can fear flying and yet still fly. And one can easily imagine that flying to a vacation destination would be less stressful than flying to testify before Congress about your sexual assault at the hands of a Supreme Court nominee, after the same members of Congress, and the president of the United States, have publicly called you a liar.

Mitchell wraps up her efforts at undermining Ford by suggesting that Ford is not credible because on one occasion she said that Kavanaugh’s sexual assault “caused” her psychological problems, and on another occasion she said that the assault “contributed” to her psychological problems. Again: That’s it?

In her report, Mitchell comes to a “bottom line” conclusion that “no reasonable prosecutor” would charge the case. That may be true based on what was presented, but Ford’s allegation had never been investigated by any law enforcement agency. No prosecutor would charge any case without a full investigation by law enforcement. Further, Kavanaugh’s confirmation hearing is a job interview, not a trial. Mitchell’s conclusions, in absence of a full and thorough investigation, expose her as the Republican mouthpiece she was hired to be.