On occasion, the Supreme Court will appoint an outside lawyer to argue a position no one else is arguing, usually when a party declines to defend a lower court’s decision in a hypertechnical legal dispute. At the end of that lawyer’s service, as custom dictates, Chief Justice John Roberts will acknowledge the attorney’s contributions to the case and express gratitude on behalf of the court. “You have ably discharged that responsibility, for which we are grateful,” Roberts will say in open court.
But that’s in the Judicial branch. In the Senate, things are different.
Rachel Mitchell, the sex-crimes prosecutor appointed last week to get to the bottom of the sexual-misconduct allegations against Supreme Court nominee Brett Kavanaugh, didn’t get anywhere close to that kind of recognition. The Republican side of the Senate Judiciary Committee, which hired her to do its bidding in questioning Christine Blasey Ford, Kavanaugh’s accuser, quietly relieved her of her duties about halfway through the hearing; she had barely made it through three five-minute rounds with the judge when Lindsey Graham, in a fit of rage, decided to take over. And then she just sat there, never to be acknowledged again.
Not to leave the impression that she was just the committee’s “female assistant,” as Mitch McConnell memorably termed her expected service, Mitchell has now submitted a five-page written report with her analysis about the evidence she was able to gather in the limited time she was given. Which is to say: Mostly her impressions about Ford’s testimony, which was the lion’s share of her interventions. At the outset of her report, she cautions that she “was not pressured in any way to write this memorandum” or to commit to paper anything “with which I do not fully agree.” And she volunteers that she’s a registered Republican but nonetheless “not a political or partisan person.”
With that out of the way, very little of what she writes is the work product of a serious sex-crimes prosecutor. For one, she limits herself to the small universe of facts known to the Senate: Ford’s allegations and testimony, Kavanaugh’s categorical denials, the polygraph test, the original Washington Post story, and the smattering of letters from alleged fact witnesses who have contacted the Committee, none of whom were called before it to testify under oath. Based on that universe, Mitchell concludes: “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.”
Though that last bit of legalese doesn’t really apply to Senate confirmation hearings, there’s a kernel of truth in Mitchell’s bottom line, intentional or not. The real reason no reasonable sex-crimes prosecutor would bring a case against Kavanaugh is that no reasonable sex-crimes prosecutor would even dare seek charges without first doing her due diligence — talk to every possible fact witness, pursue leads, reconstruct the scene of the incident, collect forensic evidence if available. None of this was done by the Senate Judiciary Committee so it’s madness to subject last week’s hearing and record to the familiar standards of proof that apply in American courtrooms.
What Mitchell’s memorandum to Senate Republicans does, more than anything else, is poke holes in Ford’s recollection. In that sense, the document tells the senators most interested in seeing Kavanaugh’s confirmation succeed exactly what they want to hear: that Ford is unreliable. That she can’t recall who drove her or picked her up from the party where the alleged sexual assault occurred. That there are minor inconsistencies with what she told her therapist, her congresswoman, or the Post about the incident. That she didn’t disclose Kavanaugh’s name until she came forward with the allegations. By putting the onus on Ford to get all her ducks in a row and make perfect sense of her own story, Mitchell demands of Ford what no reasonable prosecutor would ever demand of an alleged victim calling for a full and fair investigation.
But impugning the victim’s truthfulness is not how someone who’s spent a lifetime investigating and prosecuting sex crimes goes about her work. One of Mitchell’s former longtime deputies, Matthew Long, told Mother Jones that her 11th-hour memo to the Senate was “absolutely disingenuous” because it bore little resemblance to the kind of investigative work her own office handles — from how to treat the memories of victims of sexual assault to the dearth of evidence Mitchell considered. “Her only analysis should have been: The process you’ve given me, the information we have, is insufficient,” Long said, adding that Mitchell taught him that memory holes are typically “corroborative” of traumatic experiences. In another interview, Long charged that Mitchell “abandoned what she knows to be true in favor of being a political operative.”
Perhaps the biggest tell in Mitchell’s entire memorandum comes at the very end, where she suggests that Ford’s version of events was faulty and inconclusive because of the “activities of congressional Democrats.” Mitchell doesn’t lay out the logic behind that assertion. Instead, she appends a timeline laying out the evolution of how Ford’s allegations came to light: from the moment she contacted Representative Anna Eshoo and a Post tip line in early July through her various dealings with Dianne Feinstein’s office and the steps the committee took between then and September, when knowledge of Ford’s then-anonymous letter to Feinstein was leaked to the Intercept. Is it a coincidence the loudest complaint from Republicans is how Ford’s allegations exploded into the open, not so much their substance? Mitchell’s tidy chronology of it all only gives cover to those grievances.
The most obvious gaping hole in Mitchell’s report is Kavanaugh himself: There’s nothing about his faulty memory, credibility, drinking habits, or demeanor under oath worth exploring for her. And God knows there’s more than enough in the congressional record for even a mildly curious sex-crimes prosecutor to go after. As independent journalist Marcy Wheeler has observed, that Mitchell fails to take account of her rather effective examining of Kavanaugh’s own 1982 calendar — which identifies by name a number of the partygoers Ford named in her allegations, including the ubiquitous Mark Judge — should give anyone pause about her objectivity and motivations.
If you watched the hearing, you may recall that it was right around Mitchell’s examination of the 1982 calendar that Republicans yanked her from her assignment, took over the hearing, and proceeded to apologize profusely to Kavanaugh for the trouble of having to answer questions about his youthful past. Mitchell herself wasn’t too keen on the format of it all, musing out loud that “there’s no study that says this setting, in five-minute increments, is the best way” to question witnesses about sensitive sexual-assault allegations.
When Mitchell said that at the hearing, everyone in the room and watching at home seemed to get a chuckle out of it, as if in on the joke that what she was doing was little more than a farce. In a detailed rebuttal memo of her own released Monday, Feinstein called out the report of “Republican Attorney Rachel Mitchell” by putting it in its proper context. “The question before the Senate is to determine whether Brett Kavanaugh has the suitability and trustworthiness of an individual nominated to serve for a lifetime appointment on the Supreme Court,” read Feinstein’s response. “Last Thursday’s hearing was not a trial.”