Cross-posted from NBCNews.com.
As an initial matter, many questions exist about Mitchell’s claimed independence, including whether and how much she is being paid, and by whom; what Senate Republicans talked to her about before the hearing; and why she ceased asking questions shortly after Kavanaugh began testifying.
When senators question a witness at a hearing, their political biases are obvious. The same is true when prosecutors question witnesses in court — their client is “the people.” But in this unprecedented scenario, these biases were far less clear. Indeed, although Mitchell cross-examined Ford on behalf of the Republican members of the Judiciary Committee — quite unsuccessfully in our view — committee chairman Chuck Grassley, R-Iowa, cut off her questioning of Kavanaugh shortly after his testimony began. Notably, this happened right after Mitchell questioned Kavanaugh about the possibly incriminating July 1 entry on his calendar. The end result was that Mitchell did not question Kavanaugh in the same way that she did Ford, nor did the Republicans make any attempt to do it for her. This alone severely undermines her assessment.
A reasonable prosecutor evaluating this case would attempt to corroborate the stories of both Ford and Kavanaugh by interviewing other witnesses, tracking down alleged witness Mark Judge’s employment records and by drilling down on Kavanaugh’s calendar to see if it could corroborate the party in question. These are all basic investigative steps that would need to be completed before assessing the credibility of allegations such as Ford’s. And yet none of these steps were taken before Mitchell wrote her memo.
Mitchell’s memo also fails to address a central question that any reasonable prosecutor would examine: motive. There can be no doubt that Ford’s life has been turned upside down — no one would want to endure what she has since her allegations have been made public. Moreover, when she first told her couples therapist about the assault — prompted by her irrational but understandable desire to feel secure in her own home — Kavanaugh was not, contrary to Mitchell’s assessment, on the short list of Supreme Court candidates. On the other hand, Kavanaugh has said numerous times that being on the Supreme Court was a life-long ambition of his, and it became clear that the only thing standing between him and that seat are the current allegations against him.
Similarly, any reasonable prosecutor would also weigh the fact that Ford has repeatedly requested an FBI investigation and has submitted to a lie-detector test, while Kavanaugh repeatedly refused to directly call for either despite being pressed at the hearing to ask for an investigation. Mitchell’s failure to even address these issues is stunning.
As all prosecutors know, small lies matter, particularly where the small lies are meant to protect an unequivocal denial. In this case, Kavanaugh’s denial would be rendered essentially meaningless if he admitted that he blacked out in high school from alcohol. Moreover, in our experience as prosecutors, the witnesses and defendants who thumped their chest the most were not doing so because they were falsely accused; rather, they were the most likely to be lying. They were relying on passion and emotion — not the facts — to convince others of their truthfulness.
Even if you overlook the underlying issues with Mitchell’s memo, her assessment of the truthfulness of Ford’s testimony also suffers from obvious analytical flaws. Here are just a few examples:
- Mitchell concludes that “Dr. Ford has not offered a consistent account of when the alleged assault occurred,”including assertions Ford made about the timing of the event which changed slightly between her original letter and her Senate testimony. Anyone who has dealt regularly with victims of traumatic crime knows that date specificity is challenging, particularly when the event was 36 years ago, and that people’s memories improve the more they think about a particular incident and frame it differently. Even Mitchell acknowledged that “it is common for victims to be uncertain about dates.” Yet, she completely ignores this in her conclusion. What’s remarkable in our view is actually Ford’s consistency about the time frame — the attack happened during a summer while she was a teenager. Anything more or less than that is just unrealistic nitpicking.
- Mitchell concludes that Ford “struggled” to identify Kavanaugh as the assailant by name. The critique here is apparently that Ford did not tell her therapists the name of her attacker. As Mitchell surely must recognize, the identity of one’s attacker isn’t relevant in therapy; rather, the focus is on the attack and its emotional impact, not the identity of the individual. In fact, Ford’s explanation for why she told her husband about the assault in 2012 — because she wanted two front doors in her renovated home due to PTSD she connects back to the attack – was so powerful and so sensible that this unfounded line of analysis from Mitchell reeks of desperation and overreach.
- Many of Mitchell’s critiques of Ford’s testimony are related to her arguing that Ford has “no memory of key details of the night in question.” Mitchell’s definition of “key details” is surprising for a prosecutor of so many years. One doesn’t need to be a trained investigator or a psychologist to understand how human memory works. Ford remembers the traumatic events of the night — the stairs, the bed, “the laughter, the uproarious laughter” — not the superfluous, secondary details of who else was there or how she got home. It is the job of investigators — not crime victims — to fill in the blanks or refute them. Surely Mitchell knows this.
- A major point in Mitchell’s memo is the assertion that Ford’s account of the assault “has not been corroborated by anyone she identified as having attended” the party. This is result-oriented wordsmithing. Mitchell, more than any senator, should know that letters of denial sent by lawyers are no substitute for thorough questioning under penalty of perjury. Regardless, others not involved in the assault would have no reason to remember an otherwise unremarkable night 36 years ago. But most importantly, everyone other than Brett Kavanaugh — including Mark Judge — did not refute Ford’s testimony; rather, they simply said they have no recollection of it. Thus, Mitchell’s reliance on a lack of corroboration is misleading at best and disingenuous at worst, because any prosecutor knows that individuals who did not witness the assault would have no reason to remember it. Further investigation is necessary to attempt to jog witnesses’ memories or otherwise corroborate or refute the account. Without that, a lack of corroboration is meaningless.
Finally, Mitchell’s analysis ignores the fact that some corroboration already does exist. First, Kavanaugh’s own calendars show that during the time period Ford reported he socialized with the several of the key people she singles out. In fact, all of the boys that Dr. Ford can identify from that party were in Kavanaugh’s calendar on July 1, 1982. Second, both Kavanaugh and Ford’s families were members of a country club where Ford says she had been before the attack, which is consistent with her testimony that she was in her bathing suit during the attack. Third, statements in his own yearbook and by high school and college classmates point to a man who drank excessively and was an aggressive drunk, which is also consistent with Ford’s testimony and the nature of the assault. Finally, Ford’s statements in 2012 and 2013 are corroboration for her Senate testimony that would be admissible in a court of law.
Rachel Mitchell may be a very fine prosecutor. But her one-sided, misleading memo draws broad conclusions without any foundation, doing a great disservice not only to the reputation of prosecutors and trained investigators everywhere but also to this confirmation process.
The views expressed are the authors' own and not necessarily those of the Brennan Center for Justice.