As the FBI works to complete its supplemental background investigation of sexual misconduct allegations against Judge Brett Kavanaugh by no later than this Friday, Senate Majority Leader Mitch McConnell (R-Ky.) said that he is planning to forge ahead with Judge Kavanaugh’s Supreme Court nomination this week. “The time for endless delay and obstruction has come to a close. Judge Kavanaugh’s nomination is out of committee. We’re considering it here on the floor and … we’ll be voting this week,” Senator McConnell said Monday in a Senate floor speech. Meanwhile, Democrats and their allies in the hate-Trump media are complaining that the FBI investigation is too circumscribed and time-limited. They do not want the investigation limited to a week, even though some of them had previously said a week should be sufficient. They also want the judge’s drinking habits in high school and college thoroughly investigated. President Trump made it clear that he had no problem giving the FBI free rein to investigate what it deemed to be appropriate within the parameters set by the Senate, so long as the investigation is wrapped up by Friday. “I think the FBI should do what they have to do to get to the answer,” the president said during a news conference that was intended to focus on trade, particularly the trade deal reached on Sunday between the U.S. and Canada, which will also include Mexico. “I’m guided by the Senate,” President Trump added. “I want to make the Senate happy, because ultimately they’re making the judgment. I’m not making the judgment.”
Rachel Mitchell, the career prosecutor of sex-related and other crimes in Arizona whom the Senate Judiciary Committee majority engaged to question Dr. Christine Blasey Ford on their behalf, has rendered her judgment regarding Dr. Ford’s allegations. In a memorandum addressed to all Republican senators providing her “independent assessment” of the allegations, Ms. Mitchell concluded that this case was even weaker than the typical “he said, she said” case
“Dr. Ford identified other witnesses to the event, and those witnesses either refuted her allegations or failed to corroborate them,” Ms. Mitchell wrote in her memorandum. “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.”
Ms. Mitchell described significant inconsistencies in Dr. Ford’s own various accounts of the alleged sexual assault that Dr. Ford claimed involved Judge Kavanaugh. Ms. Mitchell also included a detailed timeline to support her conclusions. For example, Dr. Ford has not offered a consistent account of when the alleged assault happened. Ms. Mitchell cited widely differing points in time when Dr. Ford said the episode allegedly occurred. Dr. Ford said that it occurred in the “mid 1980s” in her July 6, 2018 text to the Washington Post; the “early 80s” in her July 30, 2018 letter to Senator Dianne Feinstein (D-Calif.), the ranking member of the Senate Judiciary Committee; at the age of 15 in her September 16, 2018 Washington Post interview and her testimony to the Judiciary Committee; and in her “late teens,” according to her couples therapist’s notes from 2012 that the Washington Post had reviewed.
“Dr. Ford has struggled to identify Judge Kavanaugh as the assailant by name,” Ms. Mitchell observed. No name was given in either her 2012 couples therapy notes or in the 2013 individual therapy notes. Only Dr. Ford’s husband claims to recall that she identified Judge Kavanaugh by name in 2012, which is uncorroborated by the contemporaneous documentation of the 2012 couples therapy session.
“Dr. Ford has no memory of key details of the night in question—details that could help corroborate her account,” Ms. Mitchell wrote in her memorandum. Aside from not remembering where the alleged assault took place or how she got there, perhaps more importantly Ms. Ford “does not remember how she got from the party back to her house.” It was evidently much too far to walk, requiring someone to take her home by car. Yet, while describing in some detail where she hid in the house following the alleged attack, how she locked the door and then exited the house, Ms. Ford said she has no memory of who drove her home from the location of the party. “Given that this all took place before cell phones, arranging a ride home would not have been easy,” Ms. Mitchell wrote. “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.”
One explanation that has been offered for Dr. Ford’s spotty memory of circumstances surrounding the alleged attack, as opposed to her vivid memory of the details of the alleged attack itself, is the way the brain embeds memory of the actual traumatic event. Yet this explanation of how the brain works in such situations does not explain why Dr. Ford apparently remembers, as Ms. Mitchell put it, “small, distinct details from the party unrelated to the assault.” By way of example, Ms. Mitchell pointed to Dr. Ford’s testimony that “she had exactly one beer at the party and was taking no medication at the time of the alleged assault.”
Finally, there is the issue of corroboration. The FBI has been tasked with interviewing the individuals who Dr. Ford said were at the party where the alleged sexual assault supposedly occurred. It is possible that their memories may be refreshed during the course of those FBI interviews. However, as of the date of Dr. Ford’s testimony to the Judiciary Committee, none of the individuals she named have corroborated her story, including her lifelong friend Leland Keyser (née Ingham). Ms. Keyser stated through counsel in her first statement to the Judiciary Committee that she “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.” In a subsequent statement she made through counsel to the committee, Ms. Keyser said that “the simple and unchangeable truth is that she is unable to corroborate [Dr. Ford’s allegations] because she has no recollection of the incident in question.”
Career prosecutor Ms. Mitchell raised other issues of concern in her findings relating to the reliability of Dr. Ford’s memory in her recent accounts of what she claimed happened more than 30 years ago. Ms. Mitchell also questioned the extent to which Dr. Ford’s memory could have been influenced by the activities of congressional Democrats and Dr. Ford’s attorneys.
No doubt, Democrats will point to the fact that Ms. Mitchell is a registered Republican, despite the fact that she said in the introduction to her memorandum that she is “not a political or partisan person.” She emphasized her complete independence in writing her memorandum. “No senator reviewed or approved this memorandum before its release,” Ms. Mitchell said, “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.” Ms. Mitchell is highly unlikely to risk her own professional reputation as a career prosecutor to reach conclusions that she did not think were warranted based on Dr. Ford’s own testimony and information available from other sources that she carefully cited. However, that will not stop Democrats from completely rejecting Ms. Mitchell’s careful, fact-based analysis.
Indeed, the Democrats are trying to bring Judge Kavanaugh down at any cost. They are not interested in facts or in finding the truth, if at all possible, regarding an event said to have occurred more than three decades ago. They are also hypocrites, as President Trump noted in his press conference on Monday. “I watched those senators on the Democrat side, and I thought it was a disgrace, partially because I know them,” the president said. “I know them too well, and you know what? They are not angels.” He said he had seen one of them in “very bad situations,” without naming the individual.
Judge Kavanaugh’s detractors argue that the normal rule of presumption of innocence does not apply to what they call a “job interview” for the lifetime position of a Supreme Court justice. They are wrong.
The presumption of innocence is not confined to criminal trials. It is essential to preserving due process for individuals who have been unfairly accused in any meaningful situation, especially if they are at risk of losing their livelihood, reputation, and serenity of family life as a result of the allegations alone. It is precisely because we are talking about a seat on the Supreme Court that the process for evaluating a candidate to fill that seat must be fair in all respects. It must be governed by the rule of law into which the constitutional right of due process is so deeply embedded. Moreover, if Judge Kavanaugh is being viewed through the prism of a job interview, the senators conducting their constitutionally mandated “advice and consent” function should be viewed through the prism of a review of their job performance. The Democrats on the Judiciary Committee failed miserably in their job performance by taking their obstructionist campaign of partisan character assassination to new lows.
The jury is out, so to speak, on the current allegations against Judge Kavanaugh until the FBI completes its investigation and submits its summaries of its interviews to the White House and the Senate by this Friday. If nothing new of consequence emerges beyond what we know today that would cast serious doubt on the veracity of Judge Kavanaugh’s denials of the allegations, Judge Kavanaugh should be confirmed immediately.