During last Thursday's hearing, Republicans took a lot of heat for their decision to hire outside counsel, Arizona sex crimes prosecutor Rachel Mitchell, to question Christine Blasey Ford about her allegations that Supreme Court nominee Brett Kavanaugh sexually assaulted her in high school. At the time, Mitchell's slow and methodical line of questioning, interrupted in five minute intervals to turn over time to Democrats on the Judiciary Committee, looked like a mistake. Whether it was or not will long be debated, but the byproduct of Mitchell's questioning is a detailed nine-page memo that is quite damaging to Ford's case against Kavanaugh.
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Why this is significant is that ever since Ford's allegations become public, there have been dozens of "fact checks" about the allegations. But as shown by this roundup from Poynter, those checks have been nearly exclusively an attempt to call Kavanaugh's honesty into question or to debunk claims about Ford. These checks have been extremely flawed, often inaccurately paraphrasing what Kavanaugh said, to set up a fact check contradicting him.
For instance, a New York Times fact check includes a section on "excessive drinking." It reads, "Judge Kavanaugh portrayed himself in his testimony as enjoying a beer or two as a high school and college student, but not as someone who often drank to excess during those years. 'I drank beer with my friends,' he said. 'Almost everyone did. Sometimes I had too many beers. Sometimes others did. I liked beer. I still like beer. But I did not drink beer to the point of blacking out,' he said." But the paraphrase, which sets up a "fact check" citing college classmates describing him as a heavy drinker, is not supported by the quote. Kavanaugh is not denying that he drank to the point of excess, he's denying he ever blacked out, or woke up having forgotten what had happened. People digest alcohol in different ways, and "blacking out" is not a synonym for "drinking excessively." Some people can get drunk on a regular basis, throwing up or falling asleep from consuming too much alcohol, without forgetting the previous evening's events.
What Mitchell provides in her memo is something that has been entirely missing from media coverage — a fact-based document looking at some of the holes in Ford's account.
Mitchell details that:
- "Dr. Ford has not offered a consistent account of when the alleged assault happened," describing how it has varied from "mid 1980s" to "early 1980s" to the summer of 1982. Mitchell also notes, "Her August 7 statement to the polygrapher said that it happened one 'high school summer in early 80’s,' but she crossed out the word “early” for reasons she did not explain."
- "Dr. Ford has struggled to identify Judge Kavanaugh as the assailant by name" — noting that it took over 30 years, at best, if true that she told her husband his name several years ago.
- "Dr. Ford has no memory of key details of the night in question — details that could help corroborate her account." Mitchell notes that she doesn't know the time or place of the incident; she doesn't remember how she got to the party or how she got home. The latter point is significant, given that by Ford's account she was driven home and that the country club that was apparently near the house is a 20 minute drive away. "Given that this all took place before cell phones, arranging a ride home would not have been easy," 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."
- "Dr. Ford’s account of the alleged assault has not been corroborated by anyone she identified as having attended — including her lifelong friend."
- "Dr. Ford has not offered a consistent account of the alleged assault" — among other things, her accounts about the number of people at the party and whether she could hear conversations varied.
- "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." This is, perhaps, the most damning of all. Her patchy memory from 36 years ago could be chalked up to the odd way that trauma affects individuals, allowing her to recall certain details with confidence while forgetting others. But her failure to recall significant details of interactions that happened over the past few weeks or months is damning. For instance, "Dr. Ford could not remember if she showed a full or partial set of therapy notes to the Washington Post reporter." She also "does not remember if she actually had a copy of the notes" when she texted the Washington Post. The notes, which are touted as the single piece of documentary evidence of her previously describing the assault, were not turned over to the committee. She also could not recall whether the polygraph occurred on the day of her grandmother's funeral.
- In addition, "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 'sense of urgency to relay the information to the Senate and the president.' She did not contact the Senate, however, because she claims she 'did not know how to do that.' She does not explain why she knew how to contact her congresswoman but not her senator."
- Mitchell also provides a detailed timeline of how she made the allegations, displaying that "The activities of congressional Democrats and Dr. Ford’s attorneys likely affected Dr. Ford’s account."
Mitchell concluded that, from a legal standpoint, "A 'he said, she said' 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."
"Preponderance of the evidence" is the lower threshold required in civil cases, which means that more than 50 percent of the evidence points in one direction.
Now, as has been pointed out numerous times, this is not a standard legal proceeding. Assuming they would otherwise have supported Kavanaugh based on his qualifications, senators will have to make a decision on whether to confirm him based on their sense of whether there's a high enough likelihood that the event happened, not based on whether it could be proven in a court of law.
It must be said that though Mitchell's memo undermines Ford's case, it does not disprove it. No bit of exculpatory evidence has emerged — something along the lines of the Kavanaugh having been out of the country or at summer camp at the time Ford claims she was attacked — that would have made her story impossible.
Ultimately, once the FBI has concluded its updated background check, senators will have to consider whether the theoretical possibility that this could have happened and he lied under oath about it is enough to vote Kavanaugh down, or whether the totality of the evidence (or the thinness of it) raises too many doubts.