Here’s What Prosecutor Rachel Mitchell Gets Wrong About the Evidence Against Brett Kavanaugh

Brett Kavanaugh is not on trial. But it's irresponsible that Rachel Mitchell's memo says she wouldn't prosecute him, when there's been no investigation.

Rachel Mitchell, counsel for Senate Judiciary Committee Republicans, questions Dr. Christine Blasey Ford as Senators, from (L-R), Ben Sasse, R-NE, Ted Cruz, R-TX, Mike Lee, R-UT,  and John Cornyn, R-TX, listen during the Senate Judiciary Committee hearing on the nomination of Brett M. Kavanaugh to be an associate justice of the Supreme Court of the United States, focusing on allegations of sexual assault by Kavanaugh against Christine Blasey Ford in the early 1980s on September 27, 2018 in Washington,DC. (Photo by Tom Williams / POOL / AFP)        (Photo credit should read TOM WILLIAMS/AFP/Getty Images)
Rachel Mitchell questions Dr. Christine Blasey Ford during the Senate Judiciary Committee hearing on the nomination of Brett M. Kavanaugh in Washington D.C., on Sept. 27, 2018. Photo: Tom Williams/AFP/Getty Images

The new argument from Republicans looking to confirm Supreme Court nominee Brett Kavanaugh — in spite of Christine Blasey Ford’s sexual assault claims — is that he should be judged by the same standard extended to criminal defendants.

Sen. Jeff Flake of Arizona cited “due process” as the reason he would vote for Kavanaugh last week (before protesters cornered him in a Senate elevator), and Sen. Lindsey Graham of South Carolina said of the allegations that “you have to prove beyond a reasonable doubt that it did happen.”

But in the words of Rachel Mitchell, the prosecutor picked by the Republican members of the Judiciary Committee to handle their questioning of Ford last Thursday, “a Senate confirmation hearing is not a trial, especially not a prosecution,” and “there is no clear standard of proof for allegations made during the Senate’s confirmation process.” Even so, there’s a clear strategic reason why Republicans would frame the issue this way: By doing so, they raise the burden of proof in Kavanaugh’s favor.

The less cynical explanation for the focus on “due process” and “burdens of proof” is that reputational damage from an accusation of attempted rape is real. Accusing someone of a crime is considered “per se” defamation, meaning you don’t have to prove a defamatory statement actually caused reputational harm if it relates to being accused of a crime. The charge is just that serious.

As a leftist who is principally concerned with the criminal justice system’s overreach, I share that worry and would caution against any rush to judgment that would undermine Kavanaugh’s due process rights in a legal proceeding. But despite the pomp of Thursday’s hearing (and the number of prosecutors present), it was not a legal proceeding, but rather one of several qualifying interviews for the most prestigious legal job in the country. It’s a job for which there are many qualified candidates — about half of whom are Republican, and most of whom, like Donald Trump’s previous nominee Neil Gorsuch, could presumably be confirmed easily without needing to respond to accusations of sexual assault.

The burden of proof in a job interview is not the “beyond a reasonable doubt” standard applied in criminal proceedings, where the threat to personal liberty is extraordinarily high. Nor should Kavanaugh be held to the lower preponderance of evidence or “more likely than not” standard applied in civil cases, because, again, this isn’t a trial of any kind. As most of us have experienced — and many Republicans in at-will employment states celebrate — most employment is subject to an employer’s whims, with the exception of discrimination against certain protected classes.

The question before the Senate “hiring committee,” then, is whether, in light of Ford’s credible claim, they want to move forward and hire Kavanaugh or pick from a pool of qualified applicants with cleaner records. To stay in the running, the burden is now on Kavanaugh to prove that he is the most qualified person for this most prestigious promotion. At bottom, it’s on Kavanaugh to sufficiently undermine the credibility of Ford’s claims such that the hire is worth the risk.

But for the conservatives who remain unpersuaded by the argument that lesser consequences merit a lesser burden of proof, what if this were a trial? What if we did handle the evidence adduced so far in a way that was consistent with the burdens placed on prosecutors? Is it true, as many have argued, that there is insufficient “proof” against Kavanaugh? That all Ford’s claims have been “refuted”? That her claim isn’t, in fact, credible?

On Sunday night, Mitchell released a memorandum outlining what she says is her “independent assessment” of Ford’s allegations, based on her professional experience as a sex-crimes prosecutor in Arizona. Many on the political right have seized on the memo as “exonerating” Kavanaugh.

But Mitchell’s memo is far from dispositive — even by the higher evidentiary burden she artificially sets.

As an initial matter, Mitchell’s memo is, on its face, a one-sided credibility assessment. At no point does she measure Kavanaugh’s credibility against his accuser’s. But when considering a “he said she said” case, the credibility assessment is necessarily relative, not absolute. That Mitchell critiques Ford’s ability to remember events from 36 years prior, while failing to comment on Kavanaugh’s inability to remember attending parties like the one Ford described (even as a similar event was marked on his much ballyhooed calendar) speaks volumes.

Her choice to weigh small memory lapses…while ignoring Kavanaugh’s significant omissions, is akin to deciding that a sexual assault victim is not credible because she couldn’t remember last Tuesday’s breakfast.

While Mitchell makes efforts to shore up her own integrity throughout her report, describing her assessment as “independent” and her appointment as the result of a “bipartisan recommendation,” her choice to weigh small memory lapses, like Ford’s inability to recall whether she showed a full or partial set of her therapy notes to the Washington Post, while ignoring Kavanaugh’s significant omissions, is akin to deciding that a sexual assault victim is not credible because she couldn’t remember last Tuesday’s breakfast. (I, for the record, cannot).

Mitchell also notes that Ford could not remember the address of the home where the assault took place, and tries (and fails) to expose some inconsistency in Ford’s descriptions of the moments following the rape. At the same time, Mitchell is skeptical that Ford could remember other details, such as the fact that she wasn’t on any medication that night, that she only had one beer, or that she wouldn’t mention to her therapist when recounting the assault decades later that her friend Leland Ingham Keyser was also at the party.

All of this is consistent with traumatic memories. It’s easy to understand why a victim might tend to focus on and recall details that relate to a trauma — for example, one’s level of intoxication and whether they were under the influence of any other substances. The number of teenage boys present might feel relevant to a girl who was afraid or embarrassed after a sexual assault in a way that the number of teenage girls present wouldn’t. (This is an easy implication to draw from Ford’s testimony that she remembers not wanting to look like she’d been attacked when she left the house). Anyone who has strong memories of a traumatic event might relate to the notion that while some details are indelible, like, for instance, the sound of an attacker’s “uproarious laughter,” other, more quotidian details fall away.

And at no point during Kavanaugh’s testimony did Mitchell question his memory — including about the July 1 party noted on his calendar, which, consistent with Ford’s testimony about the assault, both of his friends Mark Judge and P.J. Smyth attended. Perhaps not coincidentally, Mitchell was cut off by Senate Republicans as she started down this road of inquiry. Still, her assessment could have included mention of the many well documented prevarications, inconsistencies, dodges, and lies in Kavanaugh’s testimony.

Perhaps most substantively, Mitchell’s memo repeats the same talking point Kavanaugh raised nine times during the proceeding: That the witnesses Ford identified “either refuted her allegations or failed to corroborate them.”

As an initial matter, if this were a trial, out of court statements like the ones made by the named witnesses would be excluded as hearsay. And with good reason. The principle behind the hearsay rule is that a litigant should have an opportunity to test the credibility of statements which are offered to prove the truth of the matter asserted, rather than taking them at face value. These statements should be subject to questioning, and there should be opportunities for clarification. The idea that Mitchell would make a claim about whether she would or wouldn’t prosecute this case based on the small amount of un-vetted evidence available prior to any investigation is professionally suspect on its face.

Even if they were acceptable evidence, it’s not clear that the witness statements really refute or contradict Ford’s account. For instance, Smyth said he did not recall or had no knowledge of the event, which is not inconsistent with the event having happened — after all, Ford said he was downstairs, and not a witness to the assault. Judge has indeed “refuted” Ford’s claims, saying in a statement that he “never saw Brett act in the manner Dr. Ford describes.” But as any prosecutor should consider, Judge is accused of participating in the assault, and has motive to deny the event.

In fact, of the five people Ford was able to identify by name as being in the house that day, two say they believe it did happen: Ford herself, of course, but also her friend Keyser, who, after first saying that she doesn’t know Kavanaugh and has no recollection of being at a party with him (again, not a refutation), told the Washington Post that she believes Ford’s allegations. Keyser’s statement may not provide a detailed account of the night that tracks with Ford’s, but her support is still broadly corroborating.

Unsurprisingly, Mitchell selectively cites Keyer’s statements, ignoring Keyser’s supportive comments to the Post. Instead, she argues that because Keyser is a “lifelong friend,” Keyser’s failure to corroborate Ford’s claims weighs particularly heavily against Ford’s credibility.

Mitchell’s claims fall short of dispositive, and frankly, skew toward intentionally misleading.

In what comes off as a particularly desperate line of argument, Mitchell even suggests that because Keyser “did not follow up with Dr. Ford after the party to ask why she had suddenly disappeared,” the event must not have happened, hanging the veracity of Ford’s sexual assault allegation on an odd presumption about the expected attentiveness of a female friend. (Given Mitchell’s conjecture here, I think it’s fair to speculate about Mitchell’s gender expectations, and whether she would have built a similar straw man if Keyser had been a boy).

I want to emphasize how flakey this argument is, because Mitchell has largely based her assessment of Ford’s testimony on this particular claim that the witnesses refuted or failed to corroborate it. She opens her memo by announcing that this is her “bottom line,” and in a bolded paragraph, cites the witness statements as the key basis for her conclusion that “this evidence is not sufficient to satisfy the preponderance of the evidence standard.” (Again, a standard which she admitted didn’t apply to this proceeding). Given that the only witnesses who refuted Ford’s allegations are those accused of sexual assault, and one witness actually did support Ford’s account, Mitchell’s claims fall short of dispositive, and frankly, skew toward intentionally misleading.

Next, Mitchell argues that “Dr. Ford has not offered a consistent account of when the alleged assault happens.” She points to the fact that Ford first told the Washington Post that Kavanaugh assaulted her in the “mid 1980s” before narrowing it down to the “early 80s” in a July 30 letter to Sen. Dianne Feinstein, D-Calif. Ford has been consistent about the timing since then — eventually narrowing the time frame down to the summer of 1982.

Mitchell characterizes the shift from “mid” to “early” 80s as damning, noting that “while it’s common for victims to be uncertain about dates, Dr. Ford failed to explain how she was suddenly able to narrow the timeframe to a particular season and particular year.”

The thing is, Ford did explain how she was able to narrow the timeframe to the early 80s: She realized the assault occurred before she was old enough to have a driver’s license, and was able to infer her age from that fact. Mitchell should know this, because Ford explained it in response to Mitchell’s own questioning:

Mitchell: How were you able to narrow down the time frame?

Ford: I can’t give the exact date. And I would like to be more helpful about the date, and if I knew when Mark Judge worked at the Potomac Safeway, then I would be able to be more helpful in that way. So I’m just using memories of when I got my driver’s license. I was 15 at the time. And I — I did not drive home from that party or to that party, and once I did have my drivers license, I liked to drive myself.

Mitchell: I’d assume the legal driving age was 16.

Ford: yes.

Mitchell: Ok.

(Notably, although Ford said she could pinpoint the date even better if she could confirm when Judge worked at the Safeway, the abbreviated FBI investigation into the incident has been limited to exclude an inquiry into that store’s employment records.)

In one of her more blatant mischaracterizations, Mitchell argues that Ford “struggled to identify Judge Kavanaugh as the assailant by name.” There is no basis for this statement. Here, Mitchell casts Ford’s choice not to identify Kavanaugh by name to her therapist or her husband as an inability to remember it. But at no point did Ford testify that she declined to name her assailant because she couldn’t recall who he was. In fact, she testified that she was “100 percent” certain that Kavanaugh was her attacker, that she was very familiar with who Kavanaugh was in high school, and in fact, “went out with” one of his friends who is featured prominently on his calendar.

By the end of the memo, Mitchell’s evidence against Ford’s credibility is very weak indeed. She claims that since Ford said she originally wanted her allegations to remain confidential, the timeline of her contacts with the Washington Post “raises questions.” The implication is that Ford’s decision to come forward was politically motivated, and therefore, less credible. Ford’s motive to come forward is probative of, though not dispositive of her credibility, but more importantly, giving an anonymous tip to the Washington Post is entirely consistent with wanting, well, anonymity. Ford only came forward, as she testified on Thursday, after word got out about her story, and reporters started waiting outside her home and calling her colleagues.

In her final, and perhaps her most frivolous argument, Mitchell suggests that Ford’s credibility is undermined by the fact that Ford “alleges that she struggled academically in college,” due to PTSD and anxiety from the assault, “but she has never made any similar claim about her last two years of high school.” This simply isn’t true. During Thursday’s hearing, Mitchell asked Ford whether the alleged attack “affected [her] life.” Ford responded: “The primary impact was in the initial four years after the event.” That would include the last two years of high school.

Determining credibility is something each of us do daily. We assess the credibility of our children and partners and friends based on body language, eye contact, and context. We consider whether they give indirect answers, or change the subject entirely. We compare their statements to other “extrinsic” evidence: Did she claim to be delayed by the rain on a clear night? Is it plausible that a buddy who’s always late was really caught in traffic this time?

How frequently a person lies is a significant credibility factor.

The Federal Rules of Evidence, which guide what evidence is admissible in federal court proceedings, are squeamish about letting in character evidence: they generally exclude prior bad acts from being used against an accused to show they’re guilty of the charged offense. This is an important evidentiary limitation. As many who have defended Kavanaugh over the recent days have argued, it’s not fair to suggest that just because someone hasn’t always a been boy scout, they’ve necessarily committed a particular crime. Progressives like myself, who are concerned about prosecutorial overreach, recognize that the assumption of guilt tends to accompany more melanated subjects of the criminal justice system.

A witness statement made at trial can be contradicted or “impeached” with evidence that they are not a truthful person. This is bad news for Kavanaugh.

However, the rules do contemplate some exceptions. And one exception is that witnesses who testify open themselves up to being challenged with evidence that speaks to their truthfulness. This makes sense: testifying requires a witness to make an explicit claim about their credibility — they swear an oath to tell the truth. Thus, a witness statement made at trial can be contradicted or “impeached” with evidence that they are not a truthful person.

This is bad news for Kavanaugh.

Some have argued that because Ford modified certain details of her story, and Kavanaugh stuck to his claims — no matter how incredible or implausible — he should be believed. But it’s unlikely that a court would ever instruct a jury to consider credibility that way.

Importantly, Ford adjusted her testimony after giving it further thought — not because she was cornered by difficult questioning. The modifications were small, and she did so voluntarily and under no pressure — despite knowing that any admission of uncertainty on her part would be used against her. This fact is strong evidence of her forthrightness.

By contrast, as The Intercept and others have laid out in painstaking detail, Kavanaugh repeatedly lied or stretched the truth about even the most trivial things during his testimony on Thursday, from whether he was of drinking age in the summer of 1982, to whether his frequent references to beer, partying, and vomiting in his yearbook indicate that he was a heavy drinker. This doesn’t necessarily mean that Kavanaugh is lying when he says he didn’t sexually assault Ford. But does weigh against his credibility. More seriously, it has significant implications for his fitness as a jurist.

Some Republicans are framing the Democratic opposition to Kavanaugh’s testimony as prudish opposition to his drinking or partying or acting like a teenager. Some particularly craven commentators have suggested that if Ford similarly can be shown to have drunk beer or partied or had sex in high school, her testimony should be discredited.

But the concern here isn’t that Kavanaugh imbibed, used vulgar slang, or made disparaging jokes about the sexual behavior of his female classmates. It’s that because he drank so much, he might not be able to remember, and therefore credibly deny, that he sexually assaulted Ford. It’s that he might have chosen to lie about the commonly understood meaning of “devil’s triangle” — a sex act between two men and a woman — because admitting that he referenced that sex act on his yearbook page, less than a year after he and another boy allegedly assaulted a classmate, would be too damning.

No one can say with certainty what happened between 17-year-old Brett Kavanaugh and 15-year-old Christine Blasey Ford during the summer of 1982. But what do know with certainty is that Ford’s actions have been broadly consistent with witness statements and available evidence. During her testimony, Ford attempted to answer every question, while Kavanaugh prevaricated. Ford asked for an FBI investigation while Kavanaugh demurred. Ford submitted to a lie detector test, while Kavanaugh lied or stretched the truth about easily confirmed facts, like whether he was of drinking age in 1982, or whether he was a legacy admit at Yale.

For these reasons, Kavanaugh is, at best, a bad witness. At worst, he is an attempted rapist. And at minimum, he should be disqualified from being our nation’s highest jurist.

Top photo: Rachel Mitchell questions Dr. Christine Blasey Ford during the Senate Judiciary Committee hearing on the nomination of Brett M. Kavanaugh in Washington D.C., on Sept. 27, 2018.

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