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.