Rachel Mitchell's analysis

Rachel Mitchell, the outside prosecutor Senate Republicans hired to lead the questioning in last week’s hearing about the sexual assault allegations against Judge Brett M. Kavanaugh, outlined in a memo Sunday to GOP senators why she would not bring criminal charges against the Supreme Court nominee. In the five-page memo, Mitchell explains what she sees as weaknesses and inconsistencies in what Christine Blasey Ford has said while describing an alleged assault by Kavanaugh at a home in suburban Maryland when they were teenagers in the early 1980s.

Memorandum
TO:
FROM:
DATE:
RE:

All Republican Senators
Rachel Mitchell, Nominations Investigative Counsel
United States Senate Committee on the Judiciary
September 30, 2018
Analysis of Dr. Christine Blasey Fordas Allegations

Please permit me this opportunity to present my independent assessment of Dr. Christine Blasey
Fordas allegations against Judge Brett Kavanaugh. Before I do this, I want to emphasize two
important points:
1. This memorandum contains my own independent assessment of Dr. Fordas allegations,
based upon my independent review of the evidence and my nearly 25 years of experience
as a career prosecutor of sex-related and other crimes in Arizona. This memorandum does
not necessarily reflect the views of the Chairman, any committee member, or any other
senator. No senator reviewed or approved this memorandum before its release, and I was
not pressured in any way to write this memorandum or to write any words in this
memorandum with which I do not fully agree. The words written in this memorandum are
mine, and I fully stand by all of them. While I am a registered Republican, I am not a
political or partisan person.
2. A Senate confirmation hearing is not a trial, especially not a prosecution. The Chairman
made the following statement on September 25, 2018, after he hired me:
As I have said, Iam committed to providing a forum to both Dr. Ford and Judge Kavanaugh
on Thursday that is safe, comfortable and dignified. The majority members have followed
the bipartisan recommendation to hire as staff counsel for the committee an experienced
career sex-crimes prosecutor to question the witnesses at Thursdayas hearing. The goal is
to de-politicize the process and get to the truth, instead of grandstanding and giving
senators an opportunity to launch their presidential campaigns. Iam very appreciative that
Rachel Mitchell has stepped forward to serve in this important and serious role. Ms.
Mitchell has been recognized in the legal community for her experience and objectivity.
Iave worked to give Dr. Ford an opportunity to share serious allegations with committee
members in any format shead like after learning of the allegations. I promised Dr. Ford
that I would do everything in my power to avoid a repeat of the acircusa atmosphere in the
hearing room that we saw the week of September 4. Iave taken this additional step to have
questions asked by expert staff counsel to establish the most fair and respectful treatment
of the witnesses possible.
That is how I approached my job. There is no clear standard of proof for allegations made
during the Senateas confirmation process. But the world in which I work is the legal
world, not the political world. Thus, I can only provide my assessment of Dr. Fordas
allegations in that legal context.

1

In the legal context, here is my bottom line: A ahe said, she saida 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-the-evidence standard.
Dr. Ford has not offered a consistent account of when the alleged assault happened.
aC/ In a July 6 text to the Washington Post, she said it happened in the amid 1980s.a
aC/ In her July 30 letter to Senator Feinstein, she said it happened in the aearly 80s.a
aC/ Her August 7 statement to the polygrapher said that it happened one ahigh school
summer in early 80as,a but she crossed out the word aearlya for reasons she did not
explain.
aC/ A September 16 Washington Post article reported that Dr. Ford said it happened in the
asummer of 1982.a
aC/ Similarly, the September 16 article reported that notes from an individual therapy session
in 2013 show her describing the assault as occurring in her alate teens.a But she told the
Post and the Committee that she was 15 when the assault allegedly occurred. She has not
turned over her therapy records for the Committee to review.
aC/ While it is 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.
Dr. Ford has struggled to identify Judge Kavanaugh as the assailant by name.
aC/ No name was given in her 2012 marriage therapy notes.
aC/ No name was given in her 2013 individual therapy notes.
aC/ Dr. Fordas husband claims to recall that she identified Judge Kavanaugh by name in
2012. At that point, Judge Kavanaughas name was widely reported in the press as a
potential Supreme Court nominee if Governor Romney won the presidential election.
aC/ In any event, it took Dr. Ford over thirty years to name her assailant. Delayed disclosure
of abuse is common so this is not dispositive.
When speaking with her husband, Dr. Ford changed her description of the incident to become
less specific.
aC/ Dr. Ford testified that she told her husband about a asexual assaulta before they were
married.
aC/ But she told the Washington Post that she informed her husband that she was the victim
of aphysical abusea at the beginning of their marriage.
aC/ She testified that, both times, she was referring to the same incident.
Dr. Ford has no memory of key details of the night in questionadetails that could help
corroborate her account.
aC/ She does not remember who invited her to the party or how she heard about it.
aC/ She does not remember how she got to the party.

2

aC/
aC/

aC/

She does not remember in what house the assault allegedly took place or where that
house was located with any specificity.
Perhaps most importantly, she does not remember how she got from the party back to her
house.
o Her inability to remember this detail raises significant questions.
o She told the Washington Post that the party took place near the Columbia Country
Club. The Club is more than 7 miles from her childhood home as the crow flies,
and she testified that it was a roughly 20-minute drive from her childhood home.
o She also agreed for the first time in her testimony that she was driven somewhere
that night, either to the party or from the party or both.
o Dr. Ford was able to describe hiding in the bathroom, locking the door, and
subsequently exiting the house. She also described wanting to make sure that she
did not look like she had been attacked.
o But she has no memory of who drove her or when. Nor has anyone come forward
to identify him or herself as the driver.
o Given that this all took place before cell phones, arranging a ride home would not
have been easy. Indeed, she stated that she ran out of the house after coming
downstairs and did not state that she made a phone call from the house before she
did, or that she called anyone else thereafter.
She does, however, remember small, distinct details from the party unrelated to the
assault. For example, she testified that she had exactly one beer at the party and was
taking no medication at the time of the alleged assault.

Dr. Fordas account of the alleged assault has not been corroborated by anyone she identified as
having attendedaincluding her lifelong friend.
aC/ Dr. Ford has named three people other than Judge Kavanaugh who attended the partya
Mark Judge, Patrick aPJa Smyth, and her lifelong friend Leland Keyser (nA(c)e Ingham).
Dr. Ford testified to the Committee that another boy attended the party, but that she could
not remember his name. No others have come forward.
aC/ All three named eyewitnesses have submitted statements to the Committee denying any
memory of the party whatsoever. Most relevantly, in her first statement to the Committee,
Ms. Keyser stated through counsel that, a[s]imply put, Ms. Keyser does not know Mr.
Kavanaugh and she has no recollection of ever being at a party or gathering where he was
present, with, or without, Dr. Ford.a In a subsequent statement to the Committee through
counsel, Ms. Keyser said that athe simple and unchangeable truth is that she is unable to
corroborate [Dr. Fordas allegations] because she has no recollection of the incident in
question.a
o Moreover, Dr. Ford testified that her friend Leland, apparently the only other girl
at the party, did not follow up with Dr. Ford after the party to ask why she had
suddenly disappeared.
Dr. Ford has not offered a consistent account of the alleged assault.
aC/ According to her letter to Senator Feinstein, Dr. Ford heard Judge Kavanaugh and Mark
Judge talking to other partygoers downstairs while she was hiding in the bathroom after
the alleged assault. But according to her testimony, she could not hear them talking to
anyone.
3

aC/

o In her letter, she stated, aI locked the door behind me. Both loudly stumbled down
the stairwell, at which point other persons at the house were talking with them.a
o She testified that Judge Kavanaugh or Mark Judge turned up the music in the
bedroom so that the people downstairs could not hear her scream. She testified
that, after the incident, she ran into the bathroom, locked the door, and heard them
going downstairs. But she maintained that she could not hear their conversation
with others when they got downstairs. Instead, she testified that she aassum[ed]a a
conversation took place.
Her account of who was at the party has been inconsistent.
o According to the Washington Postas account of her therapy notes, there were four
boys in the bedroom in which she was assaulted.
o She told the Washington Post that the notes were erroneous because there were
four boys at the party, but only two in the bedroom.
o In her letter to Senator Feinstein, she said ame and 4 othersa were present at the
party.
o In her testimony, she said there were four boys in addition to Leland Keyser and
herself. She could not remember the name of the fourth boy, and no one has come
forward.
o Dr. Ford listed Patrick aPJa Smyth as a abystandera in her statement to the
polygrapher and in her July 6 text to the Washington Post, although she testified
that it was inaccurate to call him a bystander. She did not list Leland Keyser even
though they are good friends. Leland Keyseras presence should have been more
memorable than PJ Smythas.

Dr. Ford has struggled to recall important recent events relating to her allegations, and her
testimony regarding recent events raises further questions about her memory.
aC/ Dr. Ford struggled to remember her interactions with the Washington Post.
o Dr. Ford could not remember if she showed a full or partial set of therapy notes to
the Washington Post reporter.
iSS She does not remember whether she showed the Post reporter the
therapistas notes or her own summary of those notes. The Washington Post
article said that aportionsa of her atherapistas notesa were aprovided by
Ford and reviewed bya the Post. But in her testimony, Dr. Ford could not
recall whether she summarized the notes for the reporter or showed her the
actual records.
o She does not remember if she actually had a copy of the notes when she texted the
Washington Post WhatsApp account on July 6.
iSS Dr. Ford said in her first WhatsApp message to the Post that she aha[d]
therapy notes talking abouta the incident when she contacted the Postas
tipline. She testified that she had reviewed her therapy notes before
contacting the Post to determine whether the mentioned anything about
the alleged incident, but could not remember if she had a copy of those
notes, as she said in her WhatsApp message, or merely reviewed them in
her therapistas office.
aC/ Dr. Ford refused to provide any of her therapy notes to the Committee.

4

aC/

aC/

Dr. Fordas explanation of why she disclosed her allegations the way she did raises
questions.
o She claimed originally that she wished for her story to remain confidential, but the
person operating the tipline at the Washington Post was the first person other than
her therapist or husband to whom she disclosed the identity of her alleged
attacker. She testified that she had a asense of urgency to relay the information to
the Senate and the president.a She did not contact the Senate, however, because
she claims she adid not know how to do that.a She does not explain why she knew
how to contact her Congresswoman but not her Senator.
Dr. Ford could not remember if she was being audio- or video-recorded when she took
the polygraph. And she could not remember whether the polygraph occurred the same
day as her grandmotheras funeral or the day after her grandmotheras funeral.
o It would also have been inappropriate to administer a polygraph to someone who
was grieving.

Dr. Fordas description of the psychological impact of the event raises questions.
aC/ She maintains that she suffers from anxiety, claustrophobia, and post-traumatic stress
disorder (PTSD).
o The date of the hearing was delayed because the Committee was informed that
her symptoms prevent her from flying. But she agreed during her testimony that
she flies afairly frequently for [her] hobbies and a| work.a She flies to the midAtlantic at least once a year to visit her family. She has flown to Hawaii, French
Polynesia, and Costa Rica. She also flew to Washington, D.C. for the hearing.
o Note too that her attorneys refused a private hearing or interview. Dr. Ford
testified that she was not acleara on whether investigators were willing to travel to
California to interview her. It therefore is not clear that her attorneys ever
communicated Chairman Grassleyas offer to send investigators to meet her in
California or wherever she wanted to meet to conduct the interview.
aC/ She alleges that she struggled academically in college, but she has never made any
similar claim about her last two years of high school.
aC/ It is significant that she used the word acontributeda when she described the
psychological impact of the incident to the Washington Post. Use of the word
acontributeda rather than acauseda suggests that other life events may have contributed to
her symptoms. And when questioned on that point, said that she could think of anothing
as striking asa the alleged assault.
The activities of congressional Democrats and Dr. Fordas attorneys likely affected Dr. Fordas
account.
aC/ See the included timeline for details.

5

Timeline
Date

Event

Ford speaks with Rep.
Eshooas staff.
July 6

July 9
July 10
At some point
between July
10 and
September 16
July 18

Ford texts the
Washington Post
tipline using
WhatsApp.
Ford speaks with
Eshooas staff on the
phone.
Ford contacts the
Washington Post again.
Ford speaks with
Emma Brown, a
Washington Post
reporter.
Ford meets with
Eshooas staff.

July 20

Ford speaks with
Eshoo.

July 30

The letter, dated July
30, is delivered to
Senator Feinsteinas
D.C. office.

Description/Notes
Citation
Ford called Eshooas office and requested a Hearing testimony; Casey Tolan, Congresswoman Anna
meeting. A staffer spoke with Ford in
Eshoo First To Hear Blasey Fordas Story: aI Told Her I
advance of the meeting.
Believed Her,a Mercury News (Sep. 18, 2018), https://
www.mercurynews.com/2018/09/18/christine-blasey-fordIn her letter to Senator Feinstein, Ford
first-meeting-anna-eshoo-brett-kavanaugh/; Read the
wrote, aOn July 6 I notified my local
Letter Christine Blasey Ford Sent Accusing Brett
government representative to ask them
Kavanaugh of Sexual Misconduct, CNN (Sep. 17, 2018),
how to proceed . . . .a
https://www.cnn.com/2018/09/16/politics/blasey-fordkavanaugh-letter-feinstein/index.html.
Identifies aBrett Kavanaugh with Mark
Hearing Testimony; Produced documents
Judgea as her attacker and says that aPJa
was a abystander.a She says she
ashouldnat be quieta about her allegations.
Hearing testimony

aBeen advised to contact senators or
NYT. Havenat heard back from WaPo.a
Brown was the reporter who ultimately
responded to the WhatsApp entries.

Produced documents
Hearing testimony

Hearing testimony
Ford and Eshoo met for amore than an
hour and halfa in a aconference room.a
Eshoo suggested that she write a letter
detailing her claims to Senator Feinstein.
aEshoo said she hasnat met with the
professor since that July afternoon,
although her staff has been in contact with
her since she came forward.a

Hearing testimony; Casey Tolan, Congresswoman Anna
Eshoo First To Hear Blasey Fordas Story: aI Told Her I
Believed Her,a Mercury News (Sep. 18, 2018),
https://www.mercurynews.com/2018/09/18/christineblasey-ford-first-meeting-anna-eshoo-brett-kavanaugh/.
Hearing testimony; Casey Tolan, Congresswoman Anna
Eshoo First To Hear Blasey Fordas Story: aI Told Her I
Believed Her,a Mercury News (Sep. 18, 2018), https://
www.mercurynews.com/2018/09/18/christine-blasey-fordfirst-meeting-anna-eshoo-brett-kavanaugh/.

July 31

Senator Feinstein
writes a return letter to
Ford.

Between July
30 and August
7

Ford speaks by phone
with Senator Feinstein.

Between July
30 and August
7
Between July
30 and August
7

The letter promises not to share Fordas
letter without her explicit consent. Ford
did not provide this letter to the
Committee.

Hearing testimony

Ford speaks with
Senator Feinsteinas
staff, who recommends
that she engage Debra
Katz.
Ford engages Debra
Katz to represent her
with regard to her
allegations.

August 7

Ford takes a polygraph
test after she engages
Katz.

August 20

Senator Feinstein meets
one-on-one with
Kavanaugh.

August 28

Senator Feinsteinas
staff participates in the
first Background
Investigation (BI) call.

August 31

Senator Feinstein
writes Dr. Ford a letter

Hearing testimony

Hearing testimony

Hearing testimony

Ford took a polygraph test administered
by a former FBI agent. Katz provided the
results to the Washington Post. They
showed that she awas being truthful when
she said a statement summarizing her
allegations was accurate.a

Senator Feinsteinas staff asked Judge
Kavanaugh numerous questions about
confidential background information.
Senator Feinstein promises that ashe
would not share [Dr. Fordas July 30] letter
without [Dr. Fordas] explicit consent.a

Hearing Testimony; Emma Brown, California Professor,
Writer of Confidential Brett Kavanaugh Letter, Speaks Out
About Her Allegation of Sexual Assault, Washington Post
(Sep. 16, 2018), https://www.
washingtonpost.com/investigations/california-professorwriter-of-confidential-brett-kavanaugh-letter-speaks-outabout-her-allegation-of-sexualassault/2018/09/16/46982194-b846-11e8-94eb3bd52dfe917b story.html.
Hearing Testimony; Michael Macagnone & Jimmy
Hoover, Kavanaugh Meets Top Senate Dem Opposing His
Confirmation, Law360 (Aug. 20, 2018),
https://www.law360.com/articles/1075169/kavanaughmeets-top-senate-dem-opposing-his-confirmation.
Committee records

Hearing testimony

September 47

September 6

September 12

September 12

September 13

September 14

September 16

SJC holds a public
hearing on
Kavanaughas
nomination.
SJC gives Senators an
opportunity to question
Kavanaugh about
sensitive issues at a
closed session.
The Intercept reports
that SJC Democrats
have requested to view
a aKavanaugh-related
documenta in the
possession of Senator
Feinstein.
Fordas attorney Debra
Katz is seen leaving
Capitol Hill shortly
after the Intercept story
was published.

Committee records

Senator Feinstein does not attend closed
session.

Committee records

The article reported that a letter in the
possession of Senator Feinstein
apurportedly describe[d] an incident that
was relayed to someone affiliated with
Stanford University, who authored the
letter and sent it to Rep. Anna Eshoo, a
Democrat who represents the area.a

Ryan Grim, Dianne Feinstein Withholding Brett
Kavanaugh Document From Fellow Judiciary Committee
Democrats, Intercept (Sep. 12, 2018), https://theintercept.
com/2018/09/12/brett-kavanaugh-confirmation-diannefeinstein/.

Lissandra Villa and Paul McLeod, Senate Democrats Have
Referred a Secret Letter about Brett Kavanaugh to the
FBI, BuzzFeed News (Sep. 13, 2018),
https://www.buzzfeednews.com/article/lissandravilla/senat
e-democrats-have-sent-a-secret-letter-about-brett.
Burgess Everett & Edward-Isaac Dovere, Feinstein Asks
Feds To Investigate Kavanaugh Claims in Letter, Politico
Senator Feinstein refers
(Sep. 30, 2018), https://www.politico.com/story/
the letter to the FBI.
2018/09/13/feinstein-kavanaugh-investigation-letter822902.
The article described the incident in detail. Ronan Farrow & Jane Mayer, A Sexual-Misconduct
Allegation Against the Supreme Court Nominee Brett
The New Yorker reports
Kavanaugh Stirs Tension Among Democrats in Congress,
on an interview with
New Yorker (Sep. 14, 2018), https://www.newyorker.com/
Ford but does not
news/news-desk/a-sexual-misconduct-allegation-againstidentify her by name.
the-supreme-court-nominee-brett-kavanaugh-stirs-tensionamong-democrats-in-congress.
The article described the incident in detail. Emma Brown, California Professor, Writer of Confidential
The Washington Post
Brett Kavanaugh Letter, Speaks Out About Her Allegation
reports on an interview
of Sexual Assault, Washington Post (Sep. 16, 2018),
with Ford.
https://www.washingtonpost.com/investigations/californiaprofessor-writer-of-confidential-brett-kavanaugh-letter-

September 17

September 25

September 26

SJC has a follow-up BI
call with Kavanaugh on
the Ford letter. Senator
Feinstein does not
participate.
SJC speaks with
Kavanaugh about the
allegations against him.
SJC speaks with Judge
Kavanaugh about the
allegations against him.

Senator Feinsteinas staff did not show up.

speaks-out-about-her-allegation-of-sexualassault/2018/09/16/46982194-b846-11e8-94eb3bd52dfe917b story.html.
Committee records

Senator Feinsteinas staff declared that they Committee records
were present aunder protesta and did not
participate.
Senator Feinsteinas staff declared that they Committee records
were present aunder protesta and did not
participate.