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Prosecutor hired to question Ford says no 'reasonable prosecutor' would charge Kavanaugh

FILE - In this Thursday, Sept. 27, 2018 photo, Rachel Mitchell, a prosecutor from Arizona, waits for Christine Blasey Ford, the woman accusing Supreme Court nominee Brett Kavanaugh of sexually assaulting her, to testify before the U.S. Senate Judiciary Committee on Capitol Hill in Washington. (Saul Loeb/Pool Photo via AP)

Rachel Mitchell, the career sex crimes prosecutor hired by Senate Republicans to question Dr. Christine Blasey Ford released a report Sunday saying the allegations of sexual assault against Judge Brett Kavanaugh as presented last week would not stand in a court of law.

In a nine-page report submitted to the Senate Judiciary Committee, Mitchell wrote, "I do not think that a reasonable prosecutor would bring this case based on the evidence before the Committee."

In her independent assessment of Ford's testimony, Mitchell identified more than a dozen areas where she believed Ford's public testimony fell short of the "preponderance-of-the-evidence standard" for a civil suit. Specifically, she noted Ford's shifting account of when the assault allegedly took place, her struggle to identify Judge Kavanaugh as the assailant by name, certain missing details about the assault and the lack of corroborating witnesses.

"A 'he said, she said' case is incredibly difficult to provide. But this case is even weaker than that," Mitchell wrote. "Dr. Ford identified other witnesses to the event, and those witnesses either refuted her allegations or failed to corroborate them."

Mitchell has 25 years of experience prosecuting sex crimes and currently heads the Special Victims Division at the Maricopa County Attorney's Office in Phoenix. At last week's Judiciary Committee hearing, she questioned Dr. Ford for roughly one hour in interrupted five-minute intervals asking specific questions about the night Ford claims Judge Kavanaugh attempted to rape her at a high school party.

Mitchell publicly questioned Judge Kavanaugh for less than 20 minutes at the Thursday hearing before Senate Republicans reclaimed their time. There were no other witnesses available.

Mitchell's assessment includes the following observations:

  • Dr. Ford provided different estimates of the date of her alleged assault to different individuals, ranging from the "early 80s" to the "mid-80s." Ford's current estimate is that the assault occurred in July 1982.
  • Dr. Ford was unable to independently recall details about the night in question that could help corroborate her account. Specifically, Ford could not recall who invited her to the party, how she got there or how she got home.
  • The three people Ford named as potential witnesses were unable to corroborate her account. Other than Judge Kavanaugh, Ford said Mark Judge, Patrick "PJ" Smyth and her lifelong friend Leland Keyser attended the party on the night in question. All three submitted statements to the Senate, under penalty of felony, stating they could not recall the incidents Ford described. None of the witnesses agreed to be interviewed by Committee staff.
  • Mitchell provides a four-page timeline of Ford's disclosure of the incident to the Senate Judiciary Committee and implies that "the activities of congressional Democrats and Dr. Ford's attorneys likely affected Dr. Ford's account."

Some conservative pundits argued the report exonerates Kavanaugh. Senate Majority Leader Mitch McConnell, R-Ky., extolled Mitchell's credentials as a prosecutor and read from her report on the floor of the Senate. He said Democrats would likely reject "this expert opinion" which casts doubt on the credibility of the accusations against Kavanaugh.

Sen. Orrin Hatch, R-Utah, a member of the Judiciary Committee, argued that Mitchell's report was "indisputable." He tweeted, "While many on the left have been eager to ignore Rachel Mitchell’s conclusions, the facts she found and outlined in her report are indisputable, and highlight the challenge of an accusation with no corroborating evidence or witnesses."

Democratic Sen. Patty Murray of Washington denounced the prosecutor's memo as a "partisan attempt by some Republicans to discredit Dr. Ford." She tweeted, "No fair and independent investigation would come to a conclusion before hearing from witnesses and gathering more info."

A legal expert specializing in sexual assault cases argued that Mitchell's recommendations were "irresponsible" because they reflected insufficient, incomplete evidence.

"Basically she's right. No reasonable prosecutor would bring forth the matter as it stands because a reasonable prosecutor would either impanel a grand jury, subpoena witnesses or send the allegation and testimony to an investigative agency to build the case," said Linda Seabrook, director of the Futures Without Violence legal program.

"She states clearly that's she going on the facts that she has," Seabrook explained. Mitchell was not allowed to investigate the case beyond the information provided to the committee by Kavanaugh, Ford, witnesses' attorneys and media reports. "It's irresponsible, in a way, that she's lending her voice as a prosecutor to this."

As of Friday, President Donald Trump authorized the Federal Bureau of Investigation to conduct a supplemental background investigation on Judge Kavanaugh. According to an agreement reached by Senate Republicans, the FBI will have no more than one week to investigate the "current credible allegations" against Kavanaugh.

Sen. Jeff Flake, R-Ariz., who led the effort to delay the vote until the FBI completes an investigation, emphasized the results should reflect the agency's high standards. "It does not good to have an investigation that just gives us more cover, for example," he said at the Forbes Under 30 Summit Monday. "We actually need to find out what we can find out. And we have to realize that we might not be able to find out everything that happened."

There is now a heated debate over how far the FBI will take its investigation. This weekend, Sen. Dianne Feinstein of California, the ranking Democrat on the Judiciary Committee, sent a letter to White House counsel Don McGahn and FBI Director Christopher Wray asking them for the written directive sent by the White House authorizing the background investigation. Feinstein further asked for the names of any additional witnesses or evidence the FBI requests beyond the initial directive.

On Monday, nine Democrats on the Judiciary Committee sent another letter to the White House counsel and FBI with a list of 24 people they believe should be interviewed "at a minimum" as part of the investigation.

The list of witnesses includes Mark Judge, Patrick "PJ" Smyth and Leland Keyser, the individuals Mitchell said were unable to corroborate Ford's claim.

Sen. Hatch appeared confident the FBI will conclude its investigation easily. "With no corroborating witnesses or evidence, the FBI will have no problem conducting the necessary background interviews," he tweeted.

However, the FBI may get more information from the named witnesses than the Senate Judiciary Committee, which received short statements from attorneys. Mark Judge, who refused to testify before the committee, is expected to cooperate with the FBI. Judge's attorney, Barbara Van Gelder issued a statement Friday saying., "If the FBI or any law enforcement agency requests Mr. Judge's cooperation, he will answer any and all questions posed to him."

Senate Democrats have expressed concerns that the White House could limit the scope of the investigation. "This FBI investigation cannot be a show or a charade. It must be real and it must go to the witnesses likely to produce facts and evidence," Sen. Richard Blumenthal, D-Conn. told reporters Friday.

On Monday, Senate Minority Leader Chuck Schumer, D-N.Y., affirmed that the FBI has the resources and capability to conduct a thorough, complete investigation of the allegations against Kavanaugh within the week. "There is concern," he added, "that the White House has placed severe constraints on the investigation."

President Trump rejected reports of White House interference or "micromanaging" of the FBI investigation. In a tweet, he said he wanted the agency "to interview whoever they deem appropriate, at their discretion." Trump followed up Monday saying the FBI has "free rein" to investigate the allegations against his Supreme Court nominee.

Later in the day, Trump said he would not object to the FBI considering three sexual assault allegations against Kavanaugh. That would include Dr. Ford's account, an allegation by Deborah Ramirez, one of Kavanaugh's college classmates, who claimed he exposed himself at a drunken party and an allegation by Julie Swetnick claiming Kavanaugh drugged young women at high school parties so they could be "gang-raped" by others.

"It wouldn't bother me at all if they interviewed all three," Trump said of Kavanaugh's accusers. He added that he still wants the investigation to "go quickly" and be limited. "We don't want to go on a witch hunt, do we."

Some Democrats are already prepared to challenge the findings of the FBI investigation. Rep. Jerry Nadler, D-N.Y., said even if Kavanaugh is confirmed to the Supreme Court, a Democratic-controlled House Judiciary Committee would continue to pursue "any credible allegation" against him, including claims of sexual assault or perjury. "If he is on the Supreme Court and the Senate hasn't investigated, then the House will have to," he said on ABC's "This Week."

As the FBI conducts its investigation, Kavanaugh's confirmation will continue moving forward toward a final Senate vote "this week," according to McConnell. "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, Mr. President, we'll be voting this week," McConnell said.


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